Layne v. Ontario (Training, Colleges and Universities), 2016 HRTO 281

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Emeline Layne

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Training, Colleges and Universities

Respondent

DECISION

Adjudicator: Alison Renton

Date: March 2, 2016

Citation: 2016 HRTO 281

Indexed as: Layne v. Ontario (Training, Colleges and Universities)

APPEARANCES

Emeline Layne, Applicant

Self-represented

Her Majesty The Queen in Right of Ontario as represented by the Ministry of Training, Colleges and Universities, Respondent

Amy Leamen, Counsel

1The applicant applied to the second career fund (“the fund”), where eligibility is determined by the respondent. Her initial application to the fund was denied in November 2013. The applicant appealed. Her appeal was denied in December 2013 by Jhita Surendar, a manager working for the respondent. This Application alleges discrimination with respect to goods, services and facilities because of race, colour, and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), when the applicant’s application to the fund was denied and alleges that Ms. Surendar and other staff discriminated against her. December 19, 2013 is identified as the date of the last event upon which the Application is based.

2The applicant emailed her Application to the Tribunal on December 31, 2014, at 11:30 p.m. In her email, the applicant acknowledged that her Application was being submitted “a little late” and stated that this was not done intentionally. She provided an explanation about why her Application was late, stating that she had filed another application with the Tribunal in November 2014, against a different respondent (“the November application”), but had not completed this Application.

3Before requiring the respondent to file a Response, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) to the applicant and requested that she file submissions addressing the delay in filing her Application. The applicant subsequently filed submissions.

4Following receipt of the applicant’s submissions, the Tribunal issued a Case Assessment Direction (“CAD”) advising that the Tribunal would schedule a preliminary hearing by conference call (“the hearing”) to determine whether the Application should be dismissed, in whole or in part, on the basis that it may be untimely and/or there may be no reasonable prospect of success. The Tribunal stipulated that it would need to hear oral testimony from the applicant about the reasons for the delay in filing the Application and provided directions to the parties to file materials upon which they intended to rely. The Tribunal stated that the respondent was not, at this point, required to file a Response. Both parties filed materials following the issuance of the CAD.

5The hearing was held on September 30, 2015, and both parties participated. The Tribunal heard evidence from the applicant in relation to the delay issue as well as the parties’ submissions in relation to issues identified in the CAD. The applicant, during her submissions, provided a lot of details about her allegations, including numerous references to the documentation she filed. Several times, the Tribunal reminded her to focus on the issues, rather than providing details about all of her allegations. At approximately 11:30 a.m., the applicant unexpectedly left the hearing. She returned to the hearing approximately 5 minutes later and concluded her submissions.

6While the applicant had not filed a Request for Order During Proceedings to amend her Application, the applicant stated during the hearing that she also intended to name Ms. Surendar as a personal respondent and not just as the contact person for the respondent. She also wanted to base her Application upon the additional Code grounds of disability, family status and marital status, although these were not marked off on her Application. The respondent stated that for the purposes of the conference call, it was prepared to consider Ms. Surendar as a personal respondent and to include the additional Code grounds. The Tribunal stated that Ms. Surendar as a personal respondent and the additional Code grounds would be considered as part of this Decision; however, if the Application continued to proceed, these issues would be outstanding and would need to be further addressed. For the purposes of this Decision, the Tribunal will refer to the organizational respondent and Ms. Surendar as the respondents.

7Subsequent to the hearing, the applicant filed a letter with the Tribunal expanding upon the submissions that she made at the hearing.

8For the reasons set out below, the Application is dismissed as having no reasonable prospect of success. Accordingly, I do not have to determine whether the Application is untimely and whether the applicant had a good faith explanation for the delay in filing her Application. Therefore, I am not setting out the evidence and the parties’ submissions on the delay issue.

no reasonable prospect of success

The applicant’s submissions

9As stated during the hearing, the applicant self-identifies as a black female, from the Caribbean, and a single mother. She was undergoing some mental health issues at the times relevant to her Application. She submitted that she has a lot of documentation and evidence to prove that the respondents discriminated against her on the basis of race, colour, ethnic origin, as well as disability, family status, and marital status. She filed with the Tribunal a number of documents and emails, in addition to her written and oral submissions.

10The applicant explained that there are a number of ways that an individual becomes eligible for the fund. One is leaving work for medical reasons, the basis upon which she applied to the fund, and she provided the respondents with medical documentation substantiating her leave. Her physician also recommended that she find work in an alternate field. She had been off work for some time before she applied for the fund. She filed copies of her medical documents with the Tribunal. The applicant submitted that at the time she applied for the fund, she was not in receipt of any income, although received employment insurance sickness benefits, which was also another criteria to be eligible for the fund. When she applied to the fund, she also submitted an acceptance letter she had received from a college to attend its paralegal program. During the hearing, she confirmed that at the time she applied to the fund, she had not been terminated from her employer, nor had she resigned. Approximately three months after the respondents denied her appeal, she returned to work with her employer.

11The respondents, the applicant asserts, discriminated against her on the basis of disability by ignoring and/or challenging her medical documentation, by denying her application initially and upon appeal, and in their treatment towards her. As result, she missed out on attending the paralegal program, and missed the prospect of finding employment in a better work environment.

12The applicant alleges that the respondents and some of its employees misinformed her and gave her incorrect information about the eligibility requirements of the fund and played “mental games” with her. She claims that the respondents had her medical documentation, twisted their words and explanations about the fund’s eligibility requirements, were insincere in their explanations, mentally taunted her, and attempted to manipulate her. An example of this, she stated, was the respondents’ request that she obtain proof from her employer indicating that she quit her employment. If she followed that advice, the applicant submitted, she would have been ineligible for the fund. Another employee requested different proof.

13Other individuals, from different backgrounds, including visible minority backgrounds, the applicant submits, have been found eligible for the fund. The respondents, she alleges, have accepted a stereotype that single, black mothers are always looking for handouts and take the “easy way out”, and constantly questioned why she needed the funding rather than questioning why she required the education and training for which she applied through the fund. She is very hard-working and is not taking the easy way out.

14She submitted that she wanted to keep this Application and the November application, filed against a different respondent, separate, but feels that they collaborated in having her application to the fund denied. She stated during the hearing that she believed that a representative from the respondent in the November application, who met with her personally, shared or provided to Ms. Surendar information about the applicant’s race, colour or ethnic origin.

15The applicant alleges that after her appeal was denied, she sent communications and emails to Ms. Surendar and other individuals about her position and how she felt about the denial. Her last communication was to Ms. Surendar on December 19, 2013. Part of it says, “It is so sad that you would say anything to justify your act of discrimination against me”. She alleges that the respondents ignored her communications and emails. She filed copies of her communications with the respondents with the Tribunal.

16The applicant alleges that the respondents’ failure to respond to her communications and emails demonstrates that she was discriminated against on the basis of race, colour, ethnic origin, disability, family status and marital status. She believes that Ms. Surendar perceived her to be “crazy”, based upon the medical documentation that the applicant filed with the respondents. The applicant believes that Ms. Surendar is a visible minority and provides assistance to other visible minorities who look like her. The applicant, by contrast, does not look like these other visible minorities and did not receive any help from the respondents.

17The respondents are in charge of public policy and as a public body have a duty to treat members of the public with respect. Ms. Surendar in particular, she alleges, should have known better. Ms. Surendar, she submitted, is in a specialized managerial position, service delivery, and should be well trained in providing service. She should have also received a lot of training in that position and should be knowledgeable about discrimination.

18Her return to work, the applicant alleges, was forced upon her by the respondents when they denied her appeal. Further, her medical documentation stated that the applicant was to avoid stressful situations and the respondents forcing her to return to work is in breach of her medical documentation and another example of its discriminatory treatment towards the applicant. Her workplace was toxic and created further difficulties for her, including being required to communicate with her oppressors about old allegations, such that her union had to file grievances on her behalf.

19Finally, the applicant alleges that the respondents further discriminated against her because they forwarded her emails to the respondent in her November application. By doing this, the applicant submits, she knows the respondents have discriminated against her on the basis of race, and collectively collaborated against her by supporting the other respondent’s discriminatory treatment towards her.

20The applicant described in detail the impact that the respondents’ actions had on her. She submits that her Application should be permitted to proceed in the Tribunal’s process.

The respondents’ position

21The respondents submit that the applicant has failed to provide a link between her allegations and the Code grounds upon which she relied during the hearing. Her allegations are speculative, based upon perceived unfairness, and that she has failed to produce or point to any evidence connecting the Code grounds with her allegations.

22The respondents submit that the applicant was denied the fund because she did not meet its eligibility requirements. In support of this, they referred to the information the applicant provided during the hearing that she had not been terminated or laid off, and in fact returned to her employment. They maintain that their communications with the applicant were respectful, that they did not discriminate against her, and referred to the documentation that they filed with the Tribunal.

23While the applicant marked off “visible minority” on her application for the fund, the respondents submit that this does not establish a link between her Code grounds and the mistreatment that she alleges she experienced from the respondents. They request that the Application be dismissed by the Tribunal for having no reasonable prospect of success.

Analysis

24Rule 19A of the Tribunal’s Rules of Procedure provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed.

25The 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, a decision which has been followed by the Tribunal in over 700 cases. At paras. 8 to 10, the Tribunal stated:

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.

26The Tribunal has also stated, in numerous cases, that it does not have the jurisdiction to deal with allegations of unfairness. For an application to continue in the Tribunal’s process, 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. See, for example, Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.

27A number of the applicant’s allegations are speculations that she has about Ms. Surendar and other staff who work for the organizational respondent. This includes the speculation that Ms. Surendar perceived the applicant to be “crazy”, helped out other “visible minorities” who allegedly look like Ms. Surendar rather than the applicant, and perpetuated a stereotype that black females who are single parents are looking for handouts and “the easy way out”. The applicant has not provided any details or particulars about these speculations, and, most importantly, has not been able to point to any evidence upon which she would rely to substantiate these allegations. She has not been able to point to any evidence that would suggest that Ms. Surendar’s actions, or the organizational respondent’s, were because of any Code ground, and has not established how she was subjected to differential treatment. The mere fact that she was determined ineligible for the fund, and her appeal was denied, is not sufficient to establish discriminatory treatment by the respondents.

28The applicant claims that the respondents misguided her and provided her with incorrect information about the fund’s eligibility guidelines, and played “mental games” with her. She claims that the respondents requested that she provide proof from her employer that she had quit her employment, which she submits, would make her ineligible for the fund. She provided a number of emails between the parties in support of these points.

29During this type of preliminary hearing, the Tribunal’s role is not to assess credibility, or determine the veracity of the allegations, but to determine whether the applicant can point to evidence which, if proven, is sufficient to support a violation of the Code. In reviewing the emails that the parties filed for this hearing, I find that the applicant cannot point to evidence that would establish a violation of the Code on grounds of race, colour, ethnic origin, disability, family status or marital status.

30It is clear, from the documentation filed by the parties, that there were email communications between the applicant and different representatives of the organizational respondent, including Ms. Surendar. It is clear that there was a written exchange between the parties about the fund’s eligibility requirements. In some of those emails, the applicant was told that she was not eligible for the fund because her employment with her employer was not severed. Regardless of whether this information was correct or incorrect, the applicant has not pointed to any evidence to show that the respondents’ information was incorrect and deliberately given because of one of the Code grounds upon which she is basing her Application. Instead, I find that she speculates as to the reasons why the respondents provided her with what she says is inaccurate information.

31With respect to the applicant’s claim that the respondents ignored her communications and emails subsequent to denying her appeal, again I find that the applicant cannot point to any evidence upon which she can rely to support her position that this was discriminatory treatment. In reviewing the materials filed by the parties, in particular the emails that the respondents filed at tab 5 of their materials, and tabs 12 to 16 of the applicant’s materials, it appears that the respondents did email the applicant after her appeal was denied, and it appears that they did respond to some of the email communications that she sent, although there is no last response to the applicant’s last email dated December 19, 2013.

32However, even if the respondents failed to respond to the applicant’s communications after her appeal was denied, the applicant has not been able to point to anything that would suggest that the lack of response was due to one of the Code grounds upon which she based her Application or what was raised during the hearing.

33While she writes in the December 19, 2013 email to Ms. Surendar that, “It is so sad that you would say anything to justify your act of discrimination against me”, I do not see that this can amount to discrimination on one of the Code grounds. It is not sufficient to say, in these circumstances, that there is discrimination without any underlying support for this assertion.

34Further, the applicant’s allegations that Ms. Surendar, whom she stated she assumes is a visible minority and helps other visible minorities who look like her rather than helping the applicant, is not based upon anything other than the applicant’s speculation. There is no evidence that the applicant actually met Ms. Surendar, and the applicant could not point to any evidence supporting that Ms. Surendar knew her colour. The information about the applicant’s race, colour and ethnic origin were included in her Application. The applicant did say during the hearing that representatives of the other respondent against whom she filed the November application met with her in person, and she assumed that they informed Ms. Surendar, or passed along information, about the applicant’s race, colour or ethnic origin. The applicant did not point to any documentary evidence or any other evidence in support of this claim. As such it remains only speculation.

35The applicant did not provide the Tribunal with any evidence, such as the names of individuals who were “visible minorities” and who received preferential treatment by Ms. Surendar, let alone anyone who was still employed but absent from work for medical reasons yet was deemed eligible for the fund. The fact that the applicant on her own application for the fund, which was filed by the respondents at tab 1 of their materials, answered a voluntary question about self-identification, and self-identified as being a “visible minority”, undermines her speculations that Ms. Surendar gave preferential treatment to “visible minorities” but not her, given the more specific traits she alleges were the basis for discrimination were not identified on her application.

36As for the applicant’s assertions that the respondents, by denying her appeal, forced her to return to her workplace, which she was alleges was toxic and in which she had to confront her oppressors, there is nothing that can establish that this is Code-related. There is no evidence to which the applicant has pointed to establish that the respondents were in any way involved in her decision to return to the workplace, short of denying her appeal.

37Finally, in relation to the applicant’s claim that the respondents passed along her emails which they then passed along to the respondent in her other Tribunal application, while these have not been produced, even if this allegation is accepted, this does not demonstrate that they discriminated against her in this Application. Again, the applicant has not been able to point to any evidence to demonstrate that the respondents’ actions, if they did pass along information, was because of any of the Code grounds she cites in this Application.

38Most certainly, the applicant does not agree with the respondents’ determination that she was not eligible for the fund. However, in the absence of the applicant being able to point to any evidence that the respondents’ treatment of her was because of her race, colour, ethnic origin, disability, family status or medical status, I find that the Application has no reasonable prospect of success and it is therefore dismissed.