Joan Marshall-Wilkinson v. Ontario (Community Safety and Correctional Services), 2016 HRTO 212

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joan Marshall-Wilkinson

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services

Respondent

DECISION

Adjudicator: Sheri Price Date: February 17, 2016 Citation: 2016 HRTO 212 Indexed as: Marshall-Wilkinson v. Ontario (Community Safety and Correctional Services)

APPEARANCES

Joan Marshall-Wilkinson, Applicant Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services, Respondent Hera Evans, Counsel

Introduction

1This is an Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) in which the applicant alleges that the respondent employer reprised against her for filing two grievances against it, alleging discrimination because of race. In particular, the applicant alleges that the respondent reprised against her in January 2014 by assigning her to a cramped office in her new workplace that was initially not operational at all, and then outfitted with old furniture that was in poor condition.

2In the Application that she filed with the Tribunal, the applicant had also alleged that the respondent discriminated against her because of her race contrary to the Code. However, in a July 31, 2014 Interim Decision, 2014 HRTO 1154, the Tribunal dismissed those allegations on the basis that they had been appropriately dealt with in another proceeding within the meaning of s.45.1 of the Code. In particular, the Tribunal found that the substance of the applicant’s racial discrimination claim had been appropriately dealt with by the settlement of the applicant’s 2005 grievance in 2010; and a February 2013 decision by the Grievance Settlement Board in respect of the 2011 grievance.

3In its July 2014 Interim Decision, the Tribunal found that the applicant’s allegation that the respondent had reprised against her for filing the above-noted grievances had not been dealt with in another proceeding. Accordingly, the Tribunal directed that the applicant’s reprisal claim would continue in the Tribunal’s process.

4The hearing of the applicant’s reprisal claim was held on November 19, 2015. The applicant, who was self-represented, gave evidence on her own behalf and called no other witnesses.

5Following the conclusion of the applicant’s case, the respondent made a request under Rule 19A of the Tribunal’s Rules of Procedure that the Application be dismissed at this stage, prior to the respondent calling its witnesses, on the basis that the applicant’s reprisal claim has no reasonable prospect of success.

6I heard the parties’ submissions on the respondent’s request and then adjourned the hearing to consider the request. I advised the parties that, if I determined that the Application had no reasonable prospect of success, it would be dismissed at this stage; alternatively, if I was not persuaded that the Application had no reasonable prospect of success, the hearing would continue, and I would decide the case on its merits, after hearing from the respondents’ witnesses.

7Having considered the parties’ submissions, and for the reasons set out below, I find that the applicant’s reprisal claim has no reasonable prospect of success. Accordingly, the Application is dismissed at this stage.

background

8The applicant testified that she was employed by the respondent at the Toronto Jail for 28 or 29 years. At the material time, the applicant was employed by the respondent as an assistant to the business administrator.

9It is common ground between the parties that, in or around 2013, the Toronto Jail was decommissioned and the Toronto South Detention Centre was commissioned. As part of this process, the applicant, along with other Toronto Jail staff, was relocated to the Toronto South Detention Centre.

10The applicant’s coworkers moved to the Toronto South Detention Centre on December 9, 2013. However, the applicant testified that she did not move to the new workplace with her coworkers at that time, as she had previously sought and been given approval to take vacation from December 13, 2013 until January 13, 2014.

11On Monday, January 13, 2014, the applicant reported for her first day of work in the Toronto South Detention Centre.

12The applicant testified that, although her department had been in the new office for some time prior to the applicant’s arrival, when the applicant arrived on January 13, 2014, the office to which the applicant had been assigned was not ready for her. In fact, the applicant testified that her office door was locked and she was not even able to get into it. The applicant testified that, at some point, the office was unlocked. However, even when it was unlocked, it was unusable. Specifically, the applicant testified that her office had no computer and no phone. It also had too much furniture in it for the space – two large cabinets and two large workstations – as well as a number of boxes. The applicant testified that her office was basically being used as a storage space. In addition, unlike other employees who had new workstations, the applicant testified that the workstations in her office were old, used and in poor repair. For example, the applicant testified that the desks had squeaky drawers and one of them had a red stain on it.

13Because she could not work in her office, the applicant testified that, from January 13 to 27, 2014, she worked in a cubicle area with financial staff members. The applicant testified that she had a telephone available for her use in her cubicle, as well as a computer, although the computer was “basic” and had not been fully set up.

14The applicant testified that she was supposed to share her office at the detention centre with another assistant to the business administrator. The applicant testified that that individual was expected to arrive from another institution on January 27, 2014.

15The applicant testified that it was not until January 21, 2014 that the individual responsible for overseeing the move to the Toronto South Detention Centre, the transition leader, sent an email to the person responsible for installing telephones and computers, requesting that the applicant’s office be operationalized, and noting that the person who was to be sharing the applicant’s office was expected to arrive on January 27, 2014. That email read as follows:

Hi Jeff,

Any idea when a computer can be set up in the Assistant Office Manager office as Joan has been using the Finance Clerk desk, she needs to get set up in her own office, thank you.

The second Asst is coming on the 27th, so she’ll need her office as well, thanks.

16The applicant testified that her office was somewhat operational by the time the other assistant business administrator arrived, although there was only one telephone in the office, which they both had to share for some time. However, the applicant testified that the furniture supplied for her and her office mate continued to be the same old, substandard furnishings that had been there previously, until she and her office mate took it upon themselves, several months later, to switch to some slightly better, but still uncomfortable, furniture that was in storage at the detention centre.

17The applicant submits that the January 21, 2014 email from the transition leader requesting that her office be operationalized in time for her office mate’s arrival shows that the respondent reprised against her. Specifically, the applicant contends that the respondent regarded it as urgent to get the office ready in time for her colleague, while it was content to have the applicant sit in a cubicle without access to her office from January 13, 2014 onwards.

18Although at one point during the hearing, she seemed to suggest that the location of her office, near a noisy staffroom, was also a reprisal, the applicant subsequently clarified that she was not making that allegation. The applicant also acknowledged that her office is located very near the office of the business administrator whom she assists.

Analysis and decision

19Section 8 of the Code is the section that prohibits reprisals. It states:

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.

20In order to succeed in a claim of reprisal under the Code, the applicant would have to establish that the respondent did something with the intention of retaliating against her for claiming or enforcing her rights under the Code; instituting or participating in proceedings under the Code; or refusing to infringe another person’s rights under the Code: Noble v. York University, 2010 HRTO 878.

21In this case, there is no dispute that the applicant claimed and/or enforced her rights under the Code by filing two grievances against the respondent employer, alleging that she had been discriminated against because of her race. The issue is whether the applicant has any reasonable prospect of establishing that the respondent retaliated against her because she filed such grievances claiming or enforcing her rights under the Code.

22During the hearing, I gave the applicant an opportunity to explain how she could establish that the respondent reprised against her in the manner alleged in the Application. The applicant stated that, although she could not “show the link” between the filing of her grievances and her substandard office situation “in black and white”, she herself knew, based on 30 years of experience with the respondent, that the respondent had subjected her to unfavourable working conditions in retaliation for the applicant having grieved that she had been discriminated against based on her race.

23I do not doubt that the applicant honestly believes that the respondent treated her in a negative manner because of one or both of her grievances alleging racial discrimination. However, it is well-established that the applicant’s belief that the respondent mistreated her because she claimed or enforced her rights under the Code is not evidence. It is not open to the Tribunal to make a finding of reprisal based only on the applicant’s suspicions or beliefs. The Tribunal cannot find that the respondent reprised against the applicant unless there is evidence that would allow the Tribunal itself to link the respondent’s actions towards the applicant to the fact that she claimed or enforced her rights under the Code. In my view, the evidence that has been adduced by the applicant is not a basis upon which the Tribunal could conclude that there was a connection between the applicant’s working conditions in January 2014 and the fact that she filed grievances alleging racial discrimination against the respondent in 2005 and/or 2011. Nor is there any reasonable prospect that any such evidence would be forthcoming from the respondent’s witnesses, if they were called to testify. Accordingly, the applicant’s reprisal claim has no reasonable prospect of success.

24In support of her reprisal claim, the applicant points out that the Director of the Toronto South Detention Centre is the former Superintendent of the Toronto Jail and, as such, the individual whom the applicant named as the respondent when she filed her 2011 grievance. The applicant further submits that, as the head of the Toronto South Detention Centre, the Director would have been briefed on everything that was going on at the new location in January 2014, including the applicant’s office situation. Although the applicant concedes that she has no direct knowledge of what the Director knew, she submits that it would have been standard practice for the Director to have been apprised of everything that was going on at the detention centre at the regular morning meetings.

25Although the respondent takes a different view, I accept that the applicant’s evidence, taken on its own, might establish that the applicant experienced unfavourable office conditions for some time after she started working at the Toronto South Detention Centre in January 2014. However, there is no evidence from the applicant herself, and none forthcoming from the respondent’s witnesses, that could lead to a finding that the respondent assigned the applicant to a cramped office with undesirable furnishings and/or equipment in order to retaliate against the applicant for filing her 2005 or 2011 grievances. The fact that the Director was in charge of the detention centre is not a basis upon which the Tribunal might find that the respondent reprised against the applicant, even if the applicant’s 2011 grievance named the Director herself as the respondent on the grievance. The applicant submits that the fact that the Director was named on the 2011 grievance means that she knew about it and that may be. However, the mere fact that the Director knew about the grievance could not lead the Tribunal to conclude that she retaliated against the applicant based on such knowledge, particularly given the absence of any allegations or evidence that the Director did anything to influence the applicant’s working conditions from January 2014 onwards.

26Nor is there any evidence adduced or anticipated that any other member of management took any steps against the applicant, because the applicant had claimed and/or enforced her rights under Code. Indeed, although the applicant sees it differently, I regard the January 21, 2014 email from the transition leader, requesting that the applicant’s office be operationalized, as consistent with an attempt to remedy the applicant’s office situation, not to retaliate against her.

27For the above reasons, I find that the applicant’s reprisal claim has no reasonable prospect of success. The Application is dismissed accordingly.