Hilary Cutler v. Hi-Mark Occupational Skills Training Centre Ltd., 2016 HRTO 244

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hilary Cutler

Applicant

-and-

Hi-Mark Occupational Skills Training Centre Ltd.

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: February 25, 2016 Citation: 2016 HRTO 244 Indexed as: Cutler v. Hi-Mark Occupational Skills Training Centre Ltd.

WRITTEN SUBMISSIONS

Hilary Cutler, Applicant Self-represented

Hi-Mark Occupational Skills Training Centre Ltd., Respondent Maria Kotsopoulos, Counsel

1By Application filed February 17, 2015, the applicant alleged that the respondent discriminated against her because of sex, disability, sexual orientation, gender identity, gender expression, and age contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). The applicant raised allegations regarding incidents that occurred in 1999/2000 and an incident that occurred in 2015. In 1999/2000, the respondent terminated the applicant’s enrollment in one of its programs. In 2015, the applicant reapplied to enroll with the respondent and her application was denied without any reason being provided.

2By Case Assessment Direction, the Tribunal directed that a summary hearing be held to address whether the Application, or any part of it should be dismissed for the following reasons: (1) on the basis that part of the Application is untimely and/or (2) on the basis that there is no reasonable prospect that the Application, or any particular part of it, will succeed.

3For the reasons that follow, I find that the applicant’s 1999/2000 allegations must be dismissed as untimely. I also find that her allegations of discrimination based on age, gender identity and gender expression must be dismissed on the basis that they have no reasonable prospect of success. However, at this stage, I find that it is not appropriate to dismiss the applicant’s allegation that the respondent discriminated against her based on sex and/or sexual orientation when it denied her application in 2015. In my view, in order to address these allegations and the respondent’s refutation of them, the Tribunal must hear some evidence from the parties in a full hearing on the merits.

Summary/preliminary Hearing Process

4The purpose of a summary/preliminary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed or for some other reason – for example, if the Application is untimely.

5The Tribunal cannot address allegations of unfairness that are unrelated to the Code. Many experiences of unfairness that are not linked to the Code, can leave a person with significant financial and emotional damage, not too mention a good deal of frustration. However, the Tribunal’s jurisdiction is limited to claims of discrimination and reprisal that are linked to the prohibited grounds set out in the Code.

6The Tribunal does not hear any actual evidence (testimony) in a summary hearing. The 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, 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 whether 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 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.

8As 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.

9In addition to the power to dismiss an Application if it stands no reasonable prospect of success, the Tribunal also has the power to dismiss Applications if they are untimely. Section 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident of a “series of incidents”) to which the application relates. Under section 34(2) of the Code, a person may apply to the Tribunal more than one year after the incident to which his or her application relates (or the last incident in a series of incidents) only if the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the Application were to proceed.

Factual Background

10Having set out this basic legal framework, I now turn to the facts of this particular case.

11In either 1999 or 2000, the applicant was enrolled in one of the respondent’s programs which would allow her to obtain a license to become a gas fitter. The respondent terminated her enrollment without providing an reason for its decision. However, in her Application and Reply, the applicant alleged that, at the time that he terminated her enrolment, the respondent’s Vice President, Rick Adams, made a comment to the effect that he was uncomfortable with the fact that she menstruated. The applicant also alleged that she had been matched with another female student during the program and that she believes that this other student told the respondent that the applicant was stalking her. The applicant denies stalking the other student but she believes that the other student’s complaint was a reason why the respondent terminated her enrollment in 1999/2000.

12The applicant reapplied to the respondent’s school in 2015. The respondent denied her application without providing any reasons. Even in its Response, the respondent has provided no reason for denying her application in 2015 or for terminating her enrollment in 1999/2000. The applicant alleged that the respondent’s decisions both in 1999/2000 and 2015 were communicated to her by Rick Adams. The applicant claimed that the respondent’s denial of her application was discriminatory.

Analysis

Allegations re. incidents from 1999/2000

13As noted above, the applicant filed her Application on February 17, 2015.

14Although it was not perfectly clear, the applicant appeared to accept in the summary hearing that any allegations from approximately 15 years ago would be untimely. She appeared to suggest that she referred to the events from 1999/2000 to support her claim that the respondent discriminated against her when it denied her application in 2015.

15To the extent that the applicant is seeking to claim that the events in 1999/2000 were discriminatory under the Code, I must dismiss her allegations from 1999/2000 as untimely.

16The applicant filed her Application approximately 15 years after the incidents that took place in 1999/2000.Therefore these allegations are untimely under s. 34(1) of the Code unless they form part of a “series of incidents” with her allegations from 2015 or unless she can provide a reasonable “good faith” explantion for her delay in filing her Application in regard to the 1999/2000 events.

17The Tribunal has found that there must be some thematic connection or nexus between incidents in order for them to be considered a “series of incidents” within the meaning of s. 34(1) of the Code. Generally, the Tribunal has not considered incidents to form part of a “series of incidents” if there is a break of one year or more between incidents. In my view, the incidents from 1999/2000 do not form part of a series of incidents with the 2015 incident due to the 15 year period of time between them. Such a substantial period of time would interrupt any alleged “series” of incidents.

18As noted above, the applicant appeared to acknowledge in the summary hearing that the allegations about incidents from 1999/2000 are untimely. To the extent that she is attempting to claim a breach of the Code in relation to these incidents, she provided no reason for her delay in filing an Application in relation to them except that she was unaware of her right to file an Application at that time. The Tribunal has held that an applicant’s ignorance of their rights is not a reasonable excuse for delaying in filing an Application unless an applicant establishes that he or she had no reason to make inquiries about his or her rights. See Simmons v. Ontario (Transportation), 2010 HRTO 1884 and Selkirk v. Trillium Gift of Life Network, 2014 ONSC 7174 (Div. Ct.) The applicant provided no information to suggest that she was incapable of making inquiries about her rights in or around 1999/2000. Therefore, I find that she has provided no reasonable explanation for her delay in making her claim regarding the 1999/2000 allegations. Accordingly, these allegations must be dismissed as untimely.

19It does not follow from this conclusion that no evidence can be lead with respect to any of the untimely issues raised in the Application. Rather the effect of my conclusions here are that the untimely allegations in the Application are not issues for which any of the respondents can be held liable under the Code. It will be up to the adjudicator hearing the case to determine whether any evidence related to the 1999/2000 events is necessary to adjudicate the timely allegations raised in the Application. See Lawrence v. Chrysler Canada, 2012 HRTO 1087 at para. 21.

Allegations re. denial of application in 2015

20As noted above, in a summary hearing, the Tribunal must assume the applicant’s version of events is true and provable unless there is some clear evidence to the contrary. However, for an Application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation to believe that an applicant could establish discrimination on the basis of one of the grounds listed in the Application.

21The Application and Reply, as well as the applicant’s Response to the respondent’s summary hearing request, all center primarily on the applicant’s allegations that the respondent discriminated against her because of her sex and disability.

22Despite the focus on alleged sex discrimination in her Application, the applicant initially stated in the summary hearing that she did not intend to move forward with that claim. When I sought a clear confirmation of this from her, she reconsidered her position and said she wanted to move forward with the allegations relating to all the grounds listed in her Application.

Sex discrimination allegation

23When I asked the applicant what evidence was available to her to prove that her sex was a factor in the respondent’s denial of her application, she pointed to the following intended evidence:

a. that there are few women in trades;

b. that the respondent did not terminate the enrollment of any men in 1999/2000;

c. that there were allegedly no other women in the respondent’s school at the time; and

24In my view, the fact that there are not many women working in the trades is an important contextual factor but, on its own, it is not enough to reasonably establish that this particular respondent denied the applicant’s application because of her sex. As well, the fact that the respondent did not terminate the enrollment of any male students in 1999/2000 is also not sufficient to demonstrate that the applicant’s sex was a reason why the respondent denied her application in 2015. Although the applicant claimed that she was the only female in her program, this must be incorrect since she herself referred to a female classmate who she was paired with in 1999/2000. On balance, none of the factors set out above would, on their own, be sufficient to provide a reasonable basis for establishing a link between the respondent’s denial of the applicant’s application in 2015 and her sex.

25When I asked the applicant about an alleged comment made by Mr. Adams that she referred to in her Application, she initially did not recall the comment to which I was referring. She then remembered that Mr. Adams allegedly made a comment at the time that he terminated her enrollment in 1999/2000 to the effect that he was uncomfortable with the fact that she menstruated. The applicant said she found the comment inappropriate as a form of “body shaming”. She expressed frustration at the fact that the respondent did not provide a reason for terminating her enrollment in 1999/2000 other than the alleged comment about her menstruation. She suggested that the comment might indicate that Mr. Adams was uncormforatble with her as a woman and relied upon the alleged comment as evidence she would bring forward at a hearing to establish a link between Mr. Adams’ denial of her application in 2015 and her sex.

26For the purposes of this summary hearing, I must assume that the applicant will be able to prove that Mr. Adams made the comment about being uncomfortable with the applicant because she menstruated. In my view, the comment, if made, would provide sufficient evidence of a link between the respondent’s actions in 2015 and her sex, such that I cannot dismiss the application on the basis that it has no reasonable prospect of success. In my view, the Tribunal will have to hear some evidence from the parties to determine whether the applicant’s sex was a factor in why the respondent denied her application in 2015.

Disability discrimination allegation

27With respect to the applicant’s disability-related claim, the applicant indicated in her Application that she has a slight case of Tourette’s syndrome and that the respondent was aware of it. At the summary hearing, she said that, when she went to the school’s office to drop off her application, she twitched a little and suspects that the president or vice-president of the school saw this and denied her application on that basis.

28In my view, the applicant’s intended evidence to support her disability-related claim is highly speculative. Significantly, the applicant did not claim that she handed her application to the president or vice-president of the school. She also did not actually see the president or vice-president when she handed in her application. She said that she did not see them but she believes they may have seen her twitch and may have denied her application due to stereotypical thinking about persons with Tourette’s syndrome. While I understand the applicant’s concerns about the kind of stereotypical thinking that may exist in regards to persons with Tourette’s syndrome, I find that the evidence she pointed to is speculative at best and therefore insufficient to establish a link between the respondent’s denial of her application and her disability.

Sexual orientation discrimination allegation

29While the applicant focused on her claims of sex and disability-related discrimination in her Application and Reply, at the summary hearing, she focused heavily on her claim of discrimination on the basis of sexual orientation. In her Reply, the applicant accepted the respondent’s claim that it was unaware of her sexual orientation at the material time. However, in the summary hearing, the applicant stated that she now believes that the respondent was aware of her sexual orientation. When I asked her why she believed this, she said the respondent’s president and vice-president likely knew about her sexual orientation from the internet or from the way she dressed. In addition, the applicant said that a classmate made a complaint about the applicant allegedly stalking her in 1999/2000. Due to this complaint, the applicant believes that the respondent’s president or vice-president denied her application in 2015 because they thought that she was a “deviant kind of lesbian” who might stalk someone in the program.

30As noted above, for the purposes of the summary hearing, I must assume that the applicant’s allegations regarding the stalking complaint made against her are true and provable. In my view, such evidence would be sufficient to provide a link between the respondent’s denial of her application in 2015 and her sexual orientation. Although there is no connection between stalking and sexual orientation, the applicant suggested that the respondent acted on stereotypes of lesbians as deviant and capable of stalking when it denied her application in 2015. I understand that the respondent firmly denies that the applicant’s sexual orientation was a factor in their denial of her application in 2015. In order to address the applicant’s allegations of sexual orientation discrimination and the respondent’s refutation of it, the Tribunal must hear some evidence from the parties in a full hearing on the merits.

Age discrimination allegation

31The applicant provided no information regarding any evidence available to her to establish that her age was a factor in the respondent’s decision to deny her application in 2015. With respect to her age, the applicant said that she’s 51 but looks younger than her age. She said that her date of birth was on the application form and the respondent would have been aware of her age. This is an insufficient basis to establish a link between the applicant’s age and the respondent’s denial of her application.

Gender identity/gender expression discrimination allegations

32Likewise, the applicant provided no information regarding any evidence she could call in a hearing to establish that her gender identity or gender expression were factors in the respondent’s denial of her application. The applicant simply pointed to the fact that she is not very feminine looking and often wears jeans. This is an insufficient basis to establish that the applicant’s gender identity or gender expression were factors in the respondent’s denial of her application.

order

33For the reasons set out above, the tribunal orders as follows:

a. The allegations in the Application relating to events that occurred in 1999/2000 are dismissed because they are untimely. The adjudicator assigned to conduct the hearing in this case will determine the extent, if any, to which any evidence related to the 1999/2000 events is necessary to adjudicate the timely allegations that are proceeding to a hearing.

b. The applicant’s allegations of discrimination because of disability, age, gender identity and gender expression are dismissed on the basis that they have no reasonable prospect of success under the Code.

c. The applicant’s allegations of discrimination because of sex and sexual orientation are not dismissed and will proceed to a hearing on the merits.

d. The Registrar will schedule this matter for a one day merits hearing.