Tara Myers v. William Osler Health System and Laura Albisu, 2016 HRTO 199

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tara Myers Applicant

-and-

William Osler Health System and Laura Albisu Respondents

-and-

Teamsters Union Local Union No. 419 Intervenor

DECISION

Adjudicator: Naomi Overend Date: February 11, 2016 Citation: 2016 HRTO 199 Indexed As: Myers v. William Osler Health System

APPEARANCES

Tara Myers, Applicant Ian Gardner, Representative, and on her own behalf

William Osler Health System and Laura Albisu, Respondents Patty Murray, Counsel

Teamsters Union Local Union No. 419, Intervenor Katherine Ferreira, Counsel

1This Decision addresses whether the applicant has no reasonable prospect of success of establishing a link between her allegations and the grounds of ancestry, ethnic origin, race, colour, disability, sex and reprisal set out in her Application.

2The circumstances of this case are somewhat unusual because the Tribunal had previously conducted a summary hearing, and by Interim Decision dated September 10, 2014, 2014 HRTO 1331, allowed the matter proceed to a hearing on the merits. A hearing in respect of this Application was originally scheduled for July 22, 2015.

3However, a careful review of the case prior to the July hearing date revealed that the respondents had not been directed to file a full Response following the release of the September 10, 2014 Interim Decision. As a result of the Tribunal's oversight, the applicant had not been advised of the respondents' position on her allegations until the respondents disclosed their documents, witness statements and an "overview/narrative" on June 25, 2015. I determined that it would not be fair to the applicant to require her to proceed with only four weeks' notice of the opposing case. At the July 22, 2015 hearing date, I adjourned the matter.

4Before adjourning the hearing, I issued a number of oral rulings, one of which related to the evidence that would be called when the hearing resumed. Having reviewed the applicant's documents and will-say statements, I was concerned that her proposed evidence might not be sufficient to establish a link between her allegations of unfair treatment and the grounds set out in her Application. If this were the case, it would not be fair, just or expeditious to require the respondents to call their case before this issue was determined (see Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777). Accordingly, I advised the parties that at the next hearing dates, I would be hearing only the applicant's case.

5The hearing reconvened on November 4 and 5, 2015, at which time I heard the applicant's case, which consisted of documentary evidence and her testimony. Although the applicant had filed witness statements for other individuals who worked at the William Osler Health System ("William Osler"), the named organizational respondent, she advised that these individuals were reluctant to attend and she had not subpoenaed them.

Evidence

6The applicant worked for William Osler from 1989 until 2013. In 1998 she started work in the Health Information Management (HIM) section as a HIM clerk. She was promoted in 2007 to a position as coder. Although there was no specific evidence on the nature of the job, it would appear that the essence of the duties of coder was to enter the appropriate OHIP billing codes to correspond with treatment information for individual patients.

7The applicant was part of a bargaining unit and her working conditions were subject to a Collective Agreement. While there have been a number of unions representing these employees over the years, during the latter period of the applicant's employment, the Ontario Workers Union (the "union") was the bargaining representative. The applicant was entitled to, and did, file grievances about a number of alleged transgressions on the part of management.

8In addition to filing grievances, employees had other options, including filing Employee Incident Reports concerning health and safety issues, which the applicant did concerning alleged violations of William Osler's Scent Policy. Employees were also entitled to file Workplace Violence & Harassment – Employee Incident Reporting forms. The applicant also availed herself of this option.

9There were a number of incidents the applicant raised in her amended Application and in her evidence. I have found it helpful to set these out in chronological order.

• November 12, 2008: The applicant alleges her then manager, Carolyne Pasichny, told her in the front lobby of the respondent facility to get back to work and made a motion with her arm and noise that suggested she was cracking the whip. The applicant complained to the Director of Diversity Services that she was very offended "as a visible minority" by these actions. The Director suggested that he approach Ms. Pasichny, but the applicant was adamant that she wanted this addressed more globally at diversity training for managers, as she believed she would "be labelled and treated as a trouble-maker" if she took this further.
• The applicant testified that when she returned to work, she "knew" that Ms. Pasichny and her co-workers knew about her complaint. She testified that her co-workers were in a huddle and she heard one of them make a comment about "people always throwing the race card" around.
• After that, Ms. Pasichny stopped talking to her, and that once (the applicant thought in November 2009) when the applicant asked her a question, Ms. Pasichny just smiled at her and did not answer it.
• February 2009: The applicant participated in a committee reviewing William Osler's performance appraisal forms. She, and the other staff members of the committee, questioned whether the use of peer reviews as a component of the performance appraisal could lead to human rights violations, but were ignored by the management members of the committee.
• November 2010: The personal respondent, Laura Albisu, replaced Ms. Pasichny as the applicant's direct manager.
• December 2010: Ms. Albisu asked the applicant "What's wrong with your face," which the applicant took to be an insulting reference to the fact that she was a racialized individual.
• April 2011 (approx.): The area where the applicant's work station was located was taken over by the Utilization Management Department. She asked to be moved to desk "4A," but Ms. Albisu insisted that she had to sit at 5A, which was in a different row from her co-workers and made her feel isolated. She also was located with people who routinely answered phones and so her environment was noisy.
• June 2011: Ms. Albisu again asked the applicant "What's wrong with your face."
• October 2011: Another employee of William Osler, who was not the applicant's co-worker and who worked at a different site than the applicant, coughed and spat directly at the applicant's face when they encountered one another in a store at a nearby mall.
  • The applicant testified in cross-examination that the spitting incident involved all the saliva in the employee's mouth and was so vigorous that she lost her balance. She agreed with the suggestion of counsel that an attack of this nature would constitute a criminal assault, but that she did not call the police. She also testified that she went to the union about this, but that it did not file a grievance about this conduct, and she did not pursue it further by putting anything in writing or filing a complaint to the Ontario Labour Relations Board ("OLRB").
• October 5, 2011: The applicant declined to attend a meeting that had been rescheduled from September 22-23 to October 4-5, 2011 because none of the new meeting slots were in the afternoon. She testified that Ms. Albisu was aware that she had not attended either of the meetings the previous day, and came over to the applicant's desk before the final meeting time on October 5, 2011, but did not advise the applicant she had to go the meeting.
• October 7, 2011: A meeting was held between the applicant, Ms. Albisu and a Human Resources representative to discuss the applicant's non-attendance at the above-noted mandatory meeting. The meeting was adjourned when the applicant indicated that she wanted a union rep present.
• November 2011: The follow-up meeting with the applicant was held with the union rep in attendance. At that meeting, the human resources representative told the applicant that she had "a disrespectful face." A further follow-up meeting was held two weeks later.
• April 2012: The applicant again asked to move to a cubicle near her co-workers, which Ms. Albisu denied. The applicant testified that Ms. Albisu asked for the third (and final) time, "What's wrong with your face?" even though she had previously told Ms. Albisu that this was an inappropriate comment.
• April 11, 2012: The applicant, inadvertently using the wrong distribution list, sent a copy of William Osler's Scent/Fragrance Policy to approximately 260 employees, in various departments. Ms. Albisu angrily spoke to the applicant about the inappropriateness of using the hospital's email in this manner.
• May 22, 2012: The applicant testified that she filed a duty of fair representation application with the OLRB over her union's failure to file a grievance with respect to the April 2012 comment made by Ms. Albisu about her face.
• May 31, 2012: The applicant filed an Employee Incident Report concerning an unnamed co-worker whom she alleged was wearing scent/fragrance in the HIM department. The report indicated that the problem had been gradually occurring over time.
• That same day, the applicant was approached by Ms. Albisu at her work station and asked to disclose the name of the co-worker referenced in her Report. The applicant regarded this as a breach of her privacy since this was done in front of her co-workers. She also did not wish to name this individual as she feared reprisal.
• The union filed a grievance on her behalf in relation to Ms. Albisu's demand.
• June 1, 2012: The applicant sent a note to herself in which she said that Ms. Albisu claimed not to be able to smell any scented products, but that the applicant could and had to "cover [her] nose to work."
• June 4, 2012: The applicant filed a second Employee Incident Report concerning a co-worker wearing scented products on June 2, 2012, which was the weekend. The report described that this was an "ongoing problem in the dept."
• June 5, 2012: The applicant was asked by Ms. Albisu to correct an error in one of her reports. The applicant states that the email to her did not have a file number. The applicant says she reviewed the April report and found an error from a co-worker, which she corrected. At, approximately 4:15 (30 minutes after the end of her shift), Ms. Albisu confronted the applicant about not making the correction and insisted that the applicant do it, even though another co-worker could have done this. The applicant testified that Ms. Albisu attempted to block her in her cubicle and attempted to enlist another co-worker as a witness to the applicant's work refusal.
  • In cross-examination, the applicant admitted that the NACRS errors report for April clearly identifies that it was her who had failed to populate mandatory fields with respect to one transaction. She also acknowledged that although she came in at 7:45 the next morning, that she did not make the correction until she was again directed to do so by Ms. Albisu at 9:24 a.m. She also acknowledged that the fact that she did not make the correction the day before meant that the department did not meet its "NACRS internal deadline," although the applicant suggested that this would not have been an issue if the respondent had simply re-assigned the correction to another employee.
• June 6, 2012: The applicant was called to a disciplinary meeting that day at 2:00 p.m.
• June 7, 2012: Ms. Albisu issued a written warning to the applicant as a result of her "insubordinate behaviour" on June 5, 2012.
• June 11, 2012: The union filed a grievance on the applicant's behalf, which resulted in the employer agreeing to remove the letter of warning from the applicant's file.
• June 19, 2012: Ms. Albisu introduced a co-op student to everyone in the department, except the applicant.
• June 2012: The same employee who had previously spat in the applicant's face (see October 2011), both spat and coughed at the applicant's face and in her ear when he encountered her in the hallway at work.
• August 2012: The Occupational Health Department conducted a scent audit of the applicant's work area, but the applicant believed that the department was "aired" out prior to the audit, thereby reducing the scents. Moreover, she was required to attend a meeting during this period and most of her co-workers were missing, which meant that the person wearing the scent was missing from the department at the time of the audit.
• September 18, 2012: A co-worker of the applicant's, Maylene Mitchell, approached the applicant's desk to obtain her assistance getting Ms. Mitchell's "profile." The applicant refused to assist her and told her to seek assistance from her manager. Ms. Mitchell filed a Workplace Violence & Harassment Employee Incident Reporting Form with respect to this issue, saying that the applicant sniffed and waved her hand at her, suggesting that she was wearing a scented product. The applicant testified that she was not waving her hand at Ms. Mitchell, but waving dust that Ms. Mitchell disturbed when she went to leave.
• October 3, 2012: The applicant attended a meeting at Human Resources at which time she was told that Ms. Mitchell had filed the above Incident Reporting Form. The applicant testified that she waved away a piece of fluff floating in front of her at the meeting, which the respondents interpreted as being disrespectful.
• That same day, following the meeting, the applicant filed two Workplace Violence & Harassment Employee Incident Reporting Forms concerning Ms. Mitchell. The first alleged that Ms. Mitchell had peered over the applicant's cubicle wall into her purse, thereby looking at the applicant's personal belongings and failing to "respect" the applicant's "personal space." The second form stated that on that day (i.e., October 3rd), the applicant had asked Ms. Mitchell where she could find the harassment form and asked Ms. Mitchell to print one out for her. According to the form, Ms. Mitchell refused to do this and "proceeded to degrade, humiliate and belittle" the applicant. The form asked the applicant to specify the "conduct and appearance of the perpetrator," to which she responded "aggressive however that is her personality type."
• October 19, 2012: Ms. Albisu issued a written warning to the applicant with respect to the incident with Ms. Mitchell, and the applicant's two Incident Reporting Forms. With respect to the former, the warning said that the applicant had engaged in "disrespectful conduct," With respect to the complaints set out in the Forms, Ms. Albisu said that the employer had investigated them and "deemed the complaints frivolous and intended as retaliation."
• November 7, 2012: The applicant filed a Workplace Violence and Harassment Employee Incident Reporting Form through her then counsel. This form covered the incidents taking place in or on October 2011, June 5, 2012, October 3, 2012 (the meeting at Human Resources) and October 19, 2012.
• December 3, 2012: The respondent responded to this letter saying that that the applicant was covered by a collective agreement and no civil action could be commenced on her behalf in respect of her work.
• December 2012: The applicant was moved to a work station within her department. She testified that she had hoped that she would be less excluded by her co-workers, but found that the exclusion got worse instead.
• January 23, 2013: The applicant wrote to Dharsha Quintero, her Human Resources representative, asking her to confirm what the union had told the applicant, namely, that on April 4, 2012, Ms. Albisu made the "comments" about the applicant's face because she was holding a tissue in front of it.
• January 25, 2013: Ms. Quintero responded that Ms. Albisu had asked the applicant if she was ok because she holding a tissue in front of her face and Ms. Albisu was concerned about her health.
• January 28, 2013: The applicant's counsel responded to the counsel for William Osler concerning its December 3, 2012 letter, saying that the applicant did not intend to file a civil action, but wished to have her complaints addressed through the respondent's Workplace Violence and Harassment Policy.
• March 6, 2013: Laura Albisu approached the applicant while she was sitting in her cubicle "trapping" her there. The applicant testified that Ms. Albisu took her right hand off the document she was reading, and touched the applicant's left arm close to her left breast.
• March 7, 2013: The applicant wrote an email to Ms. Albisu in which she made the following inquiry: "Could you please clarify if touching someone [sic] arm is appropriate or inappropriate in the workplace? Please respond in email."
• March 8, 2013: William Osler suspended the applicant's employment shortly after she had informed the union of the incident with Ms. Albisu.
• March 13, 2013: The applicant's employment with William Osler was terminated.

10More generally, the applicant testified that she was excluded by her co-workers, and purposely excluded from the office lottery pool, which she had previously participated in. She also testified that, starting around 2010, her co-workers would cough and/or spit at her whenever she walked by them, resulting in her taking measures to avoid them – including parking in a different parking lot, using a further away printer, and eating in the library. She testified a few times that this took place on a weekly basis, but at one point testified that this deliberate coughing/spitting was directed at her on a daily basis. She also testified that she was frightened and avoided using the stairs so as to not be alone in the stairwells with her co-workers.

11The applicant did not testify about the racial makeup of the department she worked for, but did say that there were other black employees, namely Ms. Mitchell and Selma Ambert. Ms. Ambert had departed prior to the personal respondent's arrival in 2010.

decision and analysis

Disability

12The essence of the applicant's allegations with respect to this ground is that the respondents failed to provide her with a scent-free workplace. Moreover, when she attempted to complain about the situation, she was confronted by Ms. Albisu, who demanded she disclose the name of the co-worker wearing scents. However, other than a few specific allegations in mid-2012, the applicant's testimony did not give a picture of the problem she faced or the respondent's actions to address the problem.

13Indeed, as pointed out by counsel for the respondents, the applicant has failed to even establish she has a disability. She did not testify about her health, the symptoms she experienced when exposed to scents in the workplace, or any efforts made by her to obtain medical assistance for this issue during the time she worked at William Osler.

14The applicant attempted to introduce two letters from Dr. Stephen Feanny, a doctor she seems to have consulted one month and 2½ years after her employment with William Osler was terminated. There are multiple problems with these letters. From a procedural standpoint, these were not disclosed in a timely fashion, they have portions redacted from them, and the doctor was not made available for cross-examination.

15Substantively, the letters say little, other than the applicant suffers from dust mite and pollen allergies, and reports being "concerned in respect to the exacerbation of symptoms with strong smells including perfumes." This has little evidentiary value given that it appears to be entirely based on a self-report from the applicant. Moreover, it doesn't even specify what symptoms the applicant experiences, or the nature of the applicant's exposure. Dr. Feanny ends the second letter: "There is no way of testing for the effects of strong odors such as perfume."

16The applicant did not focus on this ground in her testimony, her final oral submissions and her written reply submissions. Indeed, it would appear that the applicant attributes the problems she faced largely to racism and reprisal.

Race, Colour, Ancestry, Ethnic Origin and Place of Origin

17The applicant takes the position that she was discriminated against and harassed because of race, colour, ancestry, ethnic origin and place of origin. She self-identifies as follows: "black, African-Canadian, Caribbean descent, African descent, Arawak descent." The applicant speaks with no discernable accent, and it is unlikely that a person working with her would know her place of origin. Indeed, the applicant did not provide any evidence about where she was born or raised.

18Likewise, it is unlikely that a person, who had not been specifically advised of her ancestry or ethnic origin, would be able to identify that she is a mixture of "Arawak" (the indigenous population of the Caribbean) and "African." The applicant did not testify that anyone at work had commented on her Arawak descent, or even that anyone had been told about this. Having said this, the applicant self-identifies as a visible minority and it is likely that her co-workers would have been aware that she belonged to this group.

19The fact that the applicant belonged to this group and experienced problems at work is not sufficient to prove discrimination. The applicant must establish that she experienced adverse treatment and that her race or origin was a factor in this adverse treatment. See Peel Law Association v. Pieters, 2013 ONCA 396 at para. 59.

20On the documentary evidence submitted and the testimony of the applicant I am prepared to accept that the applicant experienced the following adverse treatment:

• exclusion by co-workers
• reprimands and discipline by management
• termination of her employment (which I address in greater detail in a separate section below)

21The respondents take the position that the applicant was not subject to exclusion, or rather, whatever exclusion the applicant faced was the result of her own behaviour. In determining the issue of whether the applicant experienced adverse treatment, I am not making a finding about its underlying causes. On the evidence before me, I find that applicant was assigned a work station away from her co-workers for a period of more than two years and was generally isolated.

22I am not prepared to find that the applicant's co-workers and the employee she encountered off-site (who was not a co-worker) purposely spit and coughed on the applicant. The applicant's testimony about this conduct is that it was deliberate, continuous and sometimes violent. This is extraordinary conduct in a workplace, and one would have expected that the victim of it, unless possessed of a very submissive nature or silenced by an extended period of abuse, to complain about it to either her union or her employer. Yet in the extensive documentary record before me, there is not one note relating to this alleged conduct filed while the applicant was still employed at William Osler.

23It was during this same period that the applicant filed three Workplace Violence and Harassment Reports, at least two Employee Incident Reports about scented products in the workplace and at least three grievances. She also filed two duty of fair representation applications to the OLRB about her union. This is not the conduct of an individual who would stand idly by while her co-workers spit on her. I am prepared to infer from the applicant's failure to complain that these coughing/spitting incidents did not take place.

24This, in turn, raises issues about the applicant's credibility and/or reliability as a witness. The evidence – both oral and documentary – presents a picture of someone who takes offence easily and whose perception of events is highly distorted. I have not relied on the applicant's recollections of her working experience at William Osler where they were undermined in cross-examination or unsupported by the documentary record.

25Moreover, the applicant's evidence reveals that she is seemingly unable to understand how her conduct might offend and alienate others. The most striking example of this is the time when the applicant refused to assist a co-worker (who is, parenthetically, also a Black woman) with a work-related matter, and then asked this person to print out a Workplace Violence and Harassment Reporting Form so she could complain about this same co-worker. Despite having engaged in this conduct, the applicant asked this individual to testify for her at this hearing, and attributed her former co-worker's non-attendance to something other than her own actions.

26On the face of the evidence, there is nothing linking the adverse treatment to race. The applicant submits that the former supervisor's action of cracking the whip is clearly racist. Accepting for the moment, without finding, that that is true, this was a single action by an individual in 2008, who did not work with the applicant after mid-2010. I cannot see how this supervisor's actions can be visited upon Ms. Albisu, the supervisor who the applicant worked under from 2010 until the termination of her job in March 2013.

27The respondents take the position that most of the applicant's allegations are out of time. Section 34 of the Code states in part:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

28It is not necessary to rule, as the respondents urge me to do, that all allegations preceding December 2012 (the Application was filed on December 20, 2013) should be dismissed for delay. I am, however, prepared to find that the allegations against Ms. Pasichny, which relate to a period four to five years before the applicant filed her Application, are not part of "series of incidents" and are untimely. Indeed, the last specific action attributed to Ms. Pasichny was in November 2009 (where she is alleged to have not provided assistance to the applicant), more than a year before the first allegation against Ms. Albisu in December 2010.

29The applicant does not allege Ms. Albisu did or said anything of an overtly racist nature, but argues in her closing written submissions that Ms. Albisu's remarks about her face were done in a "sneering, maligning tone" and the words were "a clear reference to the Applicant's race, ancestry, place of origin, colour and ethnic origin." It was put to the applicant in cross-examination that the inquiries might have been misconstrued by the applicant, both in the words used and the intent behind the words, an explanation she steadfastly refused to accept.

30Given the unreliability of the applicant's perception of events, I cannot accept the applicant's interpretation of Ms. Albisu's remarks. Even accepting that the applicant's recollection of the phrasing used is correct, the words themselves are manifestly not a "clear reference" to the applicant's race, ancestry, place of origin, colour or ethnic origin. In order to give them the interpretation attributed by the applicant, I would have to have other evidence supporting this inference. No such evidence exists.

31The applicant submits that the treatment by Ms. Albisu was otherwise exclusionary and unwarranted, but having reviewed the documents and the applicant's own testimony, I cannot agree with this submission. A review of the documents surrounding the examples cited by the applicant shows a pattern of wilful disregard for Ms. Albisu's authority.

32For instance, when the applicant was sent an email invitation to attend one of three mandatory re-scheduled training sessions, she declined saying "REQUESTED AFTERNOON SESSION," without selecting any of the possible times (none of which were in the afternoon). Although the applicant's belief that Ms. Albisu's failure to remind her that she must attend one of these meetings was deliberate, and the subsequent discipline (which was grieved) was unfair, I cannot agree with her perception. Likewise, when asked to correct her NACRS report, the applicant's behaviour appears to have been openly defiant, not the reasonable response the applicant apparently believes it was.

33The applicant testified that her co-workers excluded her and that she was required to sit away from them. While this may be true, I do not see how this is linked to the applicant's race or other Code-related characteristics. She testified that two other Black women in her department were subject to the same kind of treatment, but neither woman testified on the applicant's behalf (despite the fact that the applicant included them on her witness list).

34One of these co-worker's work was, according to the applicant, subject to greater scrutiny, and this individual's employment was terminated. However, the applicant did not know whether there were problems with this individual's work and admitted on cross-examination that she did not know the terms of this person's departure. In any event, there appeared to be no issue with the quality of the applicant's work or her skills as a Coder, and that was not the reason her job was terminated. The applicant's evidence about this individual does not assist me in drawing any inferences with respect to the reason for the applicant's treatment.

35The applicant testified that the second individual told her that she was isolated from her co-workers in the department. However, sometime after that confidence, the applicant ceased to be on friendly terms with this co-worker. It was this co-worker who the applicant refused to help and who filed a Workplace Violence and Harassment complaint about the applicant (and about whom the applicant reciprocated in kind). This hearsay evidence has no probative value.

36In summary, I find that the applicant has not established a link between the pre-termination treatment of her by the respondents and the enumerated grounds of race, colour, ancestry, ethnic origin or place of origin.

Reprisal, Sexual Harassment and Termination

37The applicant believes she was subject to reprisal for having filed a case on May 22, 2012 to the OLRB against her union for failing to file a grievance against Ms. Albisu for making the comments about the applicant's face. The applicant did not explain how Ms. Albisu would have been privy to this information. The applicant testified that this reprisal took place on May 31, 2012, in the form of Ms. Albisu demanding to know the name of the employee who the applicant had complained was wearing a scent in an Employee Incident Report filed earlier that day. According to the applicant, the manner in which this was done was a breach of the applicant's privacy. I cannot find that this demand was in reprisal for the applicant having attempted to enforce her rights under the Code.

38The applicant also asserts that she was subject to sexual harassment when Ms. Albisu touched her on her arm, close to her breast. Even accepting the applicant's version of events, this action, in the absence of any other related action, cannot constitute "harassment," which involves a "course of vexatious comment or conduct" (s. 10(1) of the Code). Moreover, even on the applicant's description of the touching, there was nothing "sexual" about it.

39One day after this incident, the applicant wrote to Ms. Albisu and asked her about whether touching someone on the arm was "appropriate or inappropriate in the workplace," and one day after that, the applicant's employment was suspended. She did not return to work, but rather was advised that William Osler was terminating her employment on March 13, 2013.

40The applicant testified that she was suspended shortly after advising her union about the touching incident. She appears to believe that the suspension and eventual termination was in reprisal for having reported this to the union. It seems improbable that (a) the union would immediately report this to management without first filing a grievance; and (b) that the respondents would react that quickly.

41However, it is possible on the evidence heard thus far (keeping in mind that I have not heard the respondent's evidence) that the email from the day before triggered the suspension. Similarly, the applicant had filed a Workplace Violence and Harassment complaint through her then counsel in November 2012 (and had clarified to the respondents that this is what the applicant was doing on January 28, 2013) and it is possible that this was a factor in the respondents' decision to terminate the applicant's employment.

42The Code's reprisal section protects against conduct where a person is claiming or enforcing their rights under the Code. It does not protect against conduct in retaliation for enforcing other rights (legislative or otherwise). Moreover, this provision has been interpreted as requiring the applicant to prove intent on the part of the respondent(s). That is, the applicant must prove that the respondents intended to retaliate against her because she had claimed or enforced her rights under the Code.

43The difficulty for the applicant here is that, until she filed this Application, her allegations were not identified as breaches of the Code (other than the complaint that she made in 2008 about her former supervisor, which she explicitly said she did not want to be dealt with on an individual basis and which she did not pursue). Over the years of her employment, the applicant alleged insulting conduct, unfair discipline and violations of her privacy, but did not link these allegations to any protected ground under the Code.

44The above-referenced letter from her counsel likewise makes no reference to the Code. Even the applicant's last email to Ms. Albisu asks whether "touching someone on the arm" was inappropriate. It makes no reference to the applicant's breast, or otherwise identifies hints that the applicant construed the action as "sexual" in nature. A reasonable person would not interpret the applicant's words as implying a possible connection to the Code.

45The applicant has the burden of proving discrimination and reprisal on the balance of probabilities. In light of the above, I cannot find that the applicant has established on a balance of probabilities that the respondent's intended to reprise against her for enforcing her Code rights.

46With respect to whether she has proven discrimination and/or harassment, I am mindful that an enumerated ground or grounds under the Code need only be a "factor" in the adverse treatment alleged. In this case, the applicant has not met this burden and it is not necessary for the respondents to call their evidence to refute her allegations.

order

47The Application is dismissed.