Lampitoc v. Actv8 Marketing Inc., 2016 HRTO 277

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Reuela Lampitoc Applicant

-and-

Actv8 Marketing Inc. Respondent

DECISION

Adjudicator: Douglas Sanderson Date: March 2, 2016 Citation: 2016 HRTO 277 Indexed as: Lampitoc v. Actv8 Marketing Inc.

WRITTEN SUBMISSIONS

Reuela Lampitoc, Applicant Self-represented

Actv8 Marketing Inc., Respondent Meaghen Russell, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of ethnic origin.

Background

2The applicant self-identifies as first generation Canadian, Pacific Islander. The applicant began her employment with the respondent on December 17, 2013. The respondent provides marketing services to retail and financial institutions. The applicant was employed as a Field Sales Representative selling President’s Choice MasterCard products and services. The applicant earned commissions based on the number of new and supplementary card holder applications for MasterCard products and services she submitted and the number of insurance leads she originated.

3Following a summary hearing, the Tribunal dismissed the applicant's reprisal allegations, but allowed her allegations with respect to discrimination because of ethnic origin to proceed. See Interim Decision 2015 HRTO 599.

4The applicant alleges that shortly after she was hired, John Dawe, a Senior Field Representative referred to the applicant as "that Chinese girl". The applicant alleges that she did not receive the same support as other Field Representatives. The applicant alleges that she did not receive adequate supplies and was sometimes required to share with colleagues, despite promises that supplies would be provided. The respondent equipped Field Representatives with tablets in February, 2014. Mr. Dawe distributed the tablets and the applicant’s tablet was the only tablet that did not work.

5The applicant was not invited to an annual event called “Endo” in March 2014. The applicant alleges that invitation to the Endo event is supposed to be based on the number of credit card applications each representative submitted. The applicant alleges that she submitted more applications than some representatives who were invited to the event.

The Hearing

6The hearing of this matter was held on December 10, 2015 in Windsor, Ontario. The applicant testified and was cross-examined, but presented no other witnesses. Following the applicant's evidence, the respondent requested that I dismiss the Application because it had no reasonable prospect of success.

The Applicant's Evidence

7The applicant was affirmed and gave the following evidence. The applicant had been working for another marketing company promoting Canadian Tire credit cards when she and three colleagues moved over to the respondent because of a better product. After an initial meeting with Cory Conlon, a Field Manager, to complete employment related paperwork, the applicant and Mr. Jeffries were directed to meet with Mr. Dawe for training. The applicant's evidence was that Mr. Dawe did not really provide training, but showed them his sales pitch. The applicant felt that Mr. Dawe paid more attention to Mr. Jeffries than to her during the meeting. After the meeting, Mr. Jeffries advised that Mr. Dawe had referred to the applicant as "that Chinese girl". The applicant stated that Mr. Jeffries knew how she would feel about the comment, which is why he warned her about it. The applicant confirmed that she found the reference to be discriminatory and offensive.

8The applicant found that she was lacking in sales supplies such as credit card applications and coupons (redeemable for various products by customers applying for credit cards). She stated that she was given only about 20 applications/coupons at a time. However, in cross-examination the applicant agreed that she initially received about 300 paper credit card applications and that the statement in her Application that she received allotments of about 100 applications/documents was correct. The applicant made do by sharing supplies with other Field Sales Representatives. The applicant spoke to Mr. Conlon about the supplies, but he advised that he could not send them directly to her because she lived in an apartment and declined to send them to Mr. Jeffries, although he lives in a house. In cross-examination, the applicant agreed there were no documents showing that she asked for more supplies as she began to run low. The applicant stated that she always received supplies that had been opened, but agreed that she had no evidence that the quantity of supplies she received was different than her colleagues. She noted however, that the colleagues whom she shared with had enough supplies for both of them.

9The applicant stated that Mr. Dawe told her and Mr. Jeffries to go to a store in LaSalle that Mr. Dawe had visited recently. As a result, the market there had already been "tapped out" and they did poorly. The applicant felt that Mr. Dawe was giving them the runaround. The applicant and Mr. Jeffries later told Mr. Dawe that they had made many sales to see how he would react. The applicant stated that Mr. Dawe intentionally wasted their day and was always dismissive of her.

10There was no dispute that the applicant was not invited to the Endo event, which was significant because it is a good opportunity to make sales. Invitation to the event is based on sales. The respondent's sales records, which were put to the applicant, indicate that the applicant's sales ranked 10th out of 14 Field Sales Representatives. The applicant was adamant that she is an excellent salesperson and that her sales must have been higher than several of her colleagues based on her total experience. The applicant had no evidence that the respondent's sales figures were inaccurate, but speculated that the data had been altered to prevent her from being invited to Endo. On that point, the applicant asserted that her colleague, Ahmed, advised her that Mr. Conlon and Mr. Dawe told him that there was "no way" they would let her attend the Endo event. The respondent objected to this evidence as it was hearsay, and also because the allegation has never been disclosed. I admitted the evidence subject to the weight attached to it.

11The Field Sales Representatives were equipped with tablets for completing sales in February 2014. The tablets were shipped to and distributed by Mr. Dawe. The tablet assigned to the applicant was the only one that did not function, as it would not turn on. The applicant stated that this put her at a huge disadvantage because she had to rely on paper applications. In cross-examination, however, the applicant agreed that the respondent's sales records showed that she had some of her best days of sales using paper supplies after the tablets were distributed. She also agreed that the respondent took steps to have her tablet replaced and would have delivered it to her had she not resigned. The applicant suggested that Mr. Dawe tampered with her tablet, but acknowledged that she had no evidence to support this assertion.

12By letter dated March 10, 2014, the applicant complained to Human Resources about several issues, including the Endo event, her tablet, misleading advice from Mr. Dawe, supplies and concerns about working with Mr. Dawe. In cross-examination, the applicant agreed that she did not attribute any of these issues to discrimination because of her ethnic origin. She agreed that Human Resources responded to her in a letter dated March 12, 2014, addressing each of her concerns. The applicant agreed that she was asked to provide Mr. Conlon with a list of the 10 stores she most wanted to work in for scheduling. The applicant agreed that the respondent scheduled a meeting with Mr. Conlon and his superior to discuss her concerns. There is no dispute that the applicant resigned rather than attend the meeting. The applicant stated that she resigned because she believed that Human Resources had disclosed her complaint and she lost trust in the organization.

Submissions

13As noted above, the respondent requested that the Tribunal dismiss the Application following the completion of the applicant’s evidence because her evidence does not establish a prima facie case of discrimination. The respondent submitted that the applicant has the onus to prove a violation of her Code rights. The respondent submitted that the applicant must show: 1) that she is a member of a group protected by the Code, 2) that she suffered adverse treatment and 3) a Code ground was a factor leading to the adverse treatment.

14The respondent submitted that the applicant’s allegations related to four issues: 1) the reference to her as that “Chinese girl”, 2) the fact that she was not invited to Endo, 3) the tablet assigned to her did not work, and 4) she was provided with insufficient supplies. The respondent submitted that the evidence that Mr. Dawe referred to her as a “Chinese girl” is hearsay, as the applicant did not hear the comment herself and Mr. Jeffries, who was apparently present when the comment was allegedly made, did not testify. As a result, there is no evidence of the context of the statement or any other particulars that may be helpful in assessing the alleged comment. The respondent submitted that this hearsay evidence was the only link between Mr. Dawe’s alleged actions and a Code ground. The respondent cited the Tribunal decision in Harnock v. Campus Living Centres Inc., 2012 HRTO 2189, where the Tribunal stated that, although the Tribunal has the discretion to admit hearsay evidence, it generally will not rely upon hearsay evidence to make an important finding of fact. The respondent submitted that the comment in question appears in any event to have been a single comment made in passing, which it submitted was not sufficient to establish discrimination.

15Regarding supplies, the respondent submitted that the applicant’s evidence was not consistent. The applicant stated that she only received 20 applications at a time in her evidence in chief, but agreed in cross-examination that she actually received packages of 100 at a time. The respondent submitted that there was no evidence that Mr. Dawe did anything to reduce her allotment of supplies. With respect to the “wild goose chase” to LaSalle that Mr. Dawe allegedly sent the applicant and her colleague on, the respondent submitted that this may have been unfair treatment, but there was no evidence that the applicant was treated differently than others. In any event, the respondent submitted that the applicant presented no evidence connecting this incident to her ethnicity.

16The respondent submitted that the applicant did not allege that her ethnicity was a factor in the decision not to invite her to the Endo event in her complaint to Human Resources of March 10, 2014. The evidence that Mr. Conlon and Mr. Dawe stated that there was “no way” that the applicant would attend Endo was hearsay. The respondent submitted that the applicant’s suggestion that the respondent’s sales figures were sabotaged to prevent her from going to Endo was entirely speculative. The respondent submitted that there was no evidence that the respondent’s sales data was incorrect or that the representative who attended Endo were selected for any reason other than their sales results. The respondent noted that the applicant was not the only representative not invited to Endo.

17The respondent submitted that the applicant’s testimony that someone tampered with the tablet assigned to her was speculative. The respondent submitted that the evidence was the respondent was in the process of replacing the applicant’s tablet when she resigned. The respondent noted that, in any event, the applicant had some of her best sales results using paper applications after her tablet proved to be faulty. The respondent submitted that there was no evidence that Mr. Dawe did anything to the tablet and no evidence connecting her ethnicity to the fact that her tablet did not work.

18In brief submissions, the applicant stated that despite her best efforts she was unable to have her witnesses attend the hearing. The applicant nonetheless submitted that Mr. Dawe treated her dismissively throughout her brief tenure with the respondent. The applicant submitted that Mr. Dawe had no reason to treat her in this manner other than her ethnicity.

Analysis and Decision

19The pertinent Code provision is as follows:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of… ethnic origin….

20Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

21The applicant has the onus of proving that the respondent violated her Code rights on a balance of probabilities. See Peel Law Association v. Pieters, 2013 ONCA 396 at paragraph 83. Clear, convincing and cogent evidence is required to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paragraph 46. In Pieters, the Court of Appeal stated that an applicant must establish the following three elements to make out discrimination under the Code:

a. That he or she is a member of a group protected by the Code;

b. That he or she was subjected to adverse treatment; and

c. That the Code ground was a factor in the alleged adverse treatment.

22Pursuant to Rule 19A, the Tribunal may hold a summary hearing to determine whether an application should be dismissed for having no reasonable prospect of success. The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paragraphs 8-10:

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the Application must be dismissed following the summary hearing.

23The Tribunal has stated on several occasions that it does not have the power to deal with general allegations of unfairness. An applicant must present evidence that the respondent’s actions are connected to a prohibited ground of discrimination. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at paragraph 17.

24The Tribunal usually holds summary hearings at an early stage in a proceeding. However, in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, the Tribunal concluded that the criterion of no reasonable prospect of success is not limited to the initial early stages of the Tribunal’s process and can be applied during a hearing after some, but not all, of the expected evidence has been heard. When the evidence that has been called or is proposed to be called makes it clear that the application has no reasonable prospect of success, the application should be dismissed.

25The only evidence that could link Mr. Dawe’s alleged actions regarding the applicant to the ground of ethnic origin was the applicant’s testimony that Mr. Jeffries advised her that Mr. Dawe referred to her as “that Chinese girl”. This evidence was hearsay and I not prepared to attach any weight to it and, as the respondent noted, the Tribunal generally will not rely upon hearsay evidence as the basis for important findings of fact. See Harnock, above. Without evidence linking the respondent’s or its employees’ alleged actions to the applicant’s ethnic origin, the applicant’s allegations have no reasonable prospect of success. I also note that the applicant’s evidence that Mr. Dawe tampered with her tablet and that the respondent’s sales data were altered to prevent her from attending the Endo event was entirely speculative. Consequently, there was no proper basis on which to conclude that the applicant was improperly excluded from Endo or that anything nefarious happened to her tablet.

26For these reasons, I find that the Application has no reasonable prospect of success. The Application is dismissed.