Wilkinson v. 1481544 Ontario Limited o/a Merry Maids of Barrie, 2016 HRTO 290

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pamela Wilkinson

Applicant

-and-

1481544 Ontario Limited o/a Merry Maids of Barrie

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: March 3, 2016

Citation: 2016 HRTO 290

Indexed as: Wilkinson v. 1481544 Ontario Limited o/a Merry Maids of Barrie

APPEARANCES

Pamela Wilkinson, Applicant

Self-represented

1481544 Ontario Limited o/a Merry Maids of Barrie, Respondent

Daniel Fiorini, Counsel

Introduction

1This Application, filed on February 28, 2015, alleges reprisal and discrimination in employment because of family status, marital status, age and association to a person with a disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant advised she was not proceeding with respect to the ground of marital status.

2The respondent requested a summary hearing, and by Case Assessment Direction, dated July 9, 2015, the Tribunal advised the parties that a summary hearing would be held by teleconference for the following reasons:

a. It appears that the applicant may be unable to prove that there is a connection between what the respondents are alleged to have done, and the grounds of family status, marital status and age cited in the Application. That is, although the applicant may believe that the conduct of the respondents is connected to the ground, it is not clear that there is evidence available to the applicant to prove the connection. The focus of this inquiry is on the evidence the applicant has or may be able to obtain;

b. Some of the issues the applicant is raising do not appear to fall under the Code. The focus of this inquiry is on the legal basis for the applicant’s claim and whether or not there is any reasonable prospect the allegations may amount to a Code violation; and

c. The reprisal section of the Code only applies to the actions of a respondent (or respondents) that are intended as a reprisal for any of the following: (1) claiming or enforcing a right under the Code; (2) instituting or participating in proceedings under the Code; or, (3) refusing to infringe the right of another person under the Code [s. 8]. See for example Mirea v. Canadian National Exhibition, 2009 HRTO 32; Chan v. Tai Pan Vacations, 2009 HRTO 273, Noble v. York University, 2010 HRTO 878 at para. 31. To proceed with the Application, there must be a reasonable basis to believe that the applicant could establish the respondent(s) reprised against him or her for one of these three things.

3The respondent provided written submissions, and both the applicant and the respondent made oral submissions.

summary hearing process

4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding and usually before a Response is filed, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

5The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.

6The test that is applied at the summary hearing stage is whether an application, or in this case, part of 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, and significantly, 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 if 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, or any evidence that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with the Code’s protections.

8In 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.

9As 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 a breach of the Code.

10Having set out the summary hearing process, I turn now to the facts in this Application.

facts

11The applicant worked as a house cleaner for the respondent company from January, 2012 to September 26, 2014. The parties dispute the reason the applicant’s employment ended, with the applicant asserting the respondent company terminated her employment and the respondent company asserting the applicant quit.

Age

12The applicant sets out in detail many incidents she alleges are discriminatory, including:

• not being given a uniform for three months;
• other workers failing to assist her with the cleaning when she was being trained;
• the owner of the respondent (“the owner”) failing to make eye contact with her or communicate with her when she was working with Ashley;
• not being acknowledged for her 11 months of service at the 2012 Christmas party;
• only receiving a one year certificate of service at the 2013 Christmas party;
• the respondent not initiating a WSIB claim when the applicant was injured by a garage door
• being given the driving responsibilities of a captain even though the applicant was crew.

13The applicant also alleges:

• The owner promotes a youth culture where those with the least family and marital obligations are heard, respected and promoted;
• Young workers come into work inappropriately dressed, slack off, work unprofessionally or inefficiently, are part of the “in” club and are not held accountable, whereas two older workers, namely Judy and Linda, were reprimanded for being too slow
• Ashley, who was 27, was promoted to the office in 2014 for a job that was not posted;
• Karissa and Alexis, who were 21 and 26, were working on their own within a month of being hired;
• When the applicant worked with Karissa, she did not speak to the applicant or do her share of the cleaning – when confronted about her silence, Karissa replied it was just the way she was, and when confronted about not doing her share, she looked surprised, put her phone away and began cleaning;
• Amber (27) was hired almost a year after the applicant (but had previously worked for the respondent) and after 9 months on the job was promoted to captain
• Kandice (23) was made a captain after four months on the job; and
• Dangerous driving was allowed by the owner who disregarded complaints from older workers about one employee texting and driving – the applicant also alleges she had to drive with an employee who talked on her cellphone while driving.

14She submits that in her first year and a half of employment she experienced no age discrimination but heard complaints about older workers being too slow. During that time, she was friends with Ashley, but when that friendship ceased, the applicant began to feel ostracized and excluded. She alleges Ashley did not like older workers and the applicant once caught her talking with another worker about how to get rid of older workers, although Ashley assured the applicant she was not talking about the applicant. The applicant concedes she did not speak to the owner about this and concedes the respondent’s submission that she had virtually no communication with the owner.

15The applicant further alleges other younger workers got promoted to captain positions while she did not. The respondent company asserts that the terms “captain” and “mates” were discontinued in 2012, but it could not alter the computer program to alter the service reports on which these terms were included. The respondent further points out that the applicant asserts simultaneously that the “captain” drives the vehicle, which denotes some status, and that she had to drive too often.

16The applicant further alleges that Ashley, who is young, was promoted to the office job, which was not posted. The applicant disputes the respondent’s position that the company structure is fairly horizontal with limited opportunities for promotion. She also disputes the assertion in the Response that if promotions were given on the basis of seniority, there were eight employees ahead of her. Because the office job opportunities were not posted, she disputes the owner’s submission that it is possible that most older members prefer to clean rather than have additional responsibilities.

17The respondent asserts that Ashley was hired by the owner’s husband at ServiceMaster, not at the respondent company, and she was qualified for the job because she has taken Business Administration courses and worked part-time in administration at another company.

18The respondent denies the applicant’s assertion that it promotes a “youth culture” and asserts in the Response that the staff consists of staff between 21 and 65 years of age, and that of 15 staff, 8 are older than 40.

19The respondent further submits it has a mix of older and younger workers, many of whom are longer term employees.

20The applicant further alleges age discrimination in that she and another older employee were “excessively monitored” after a customer complained about a cleaning job. The respondent counters that the monitoring was required because of the customer complaint, and it had nothing to do with the applicant’s age.

Reprisal

21The applicant asserts reprisal because:

• within a few days of her vacation request being approved, her replacement was being trained, and for the ensuing 10 weeks, the applicant was randomly scheduled with different partners every day and alleges she was given more “specials” (one time cleans) than anyone else;
• she was treated differently than her younger co-workers after she took her holiday by not getting her regular clients back, by being given someone different to work with every day, by other employees turning their backs on her making her feel ostracized (which she admits may not be linked to her age) and by the fact that her status continued to be “crew” and not “captain”;
• the respondent company gave her a day off after she responded to a derogatory comment Ashley allegedly made about “gingers”, which she assumes is because Ashley spoke to the owner after this.
• she constantly heard another older worker being put down by Ashley.

22The respondent submits the applicant had no more “specials” than anyone else; that her vacation request was accommodated without question even though she was entitled to only 14 days; and that the applicant’s day off was due to a scheduling error, with scheduling being done based on customers’ needs and in accordance with how employees have switched shifts with other employees.

Family Status and Association

23The applicant alleges discrimination on the basis of family status and association with a person with a disability resulting from an incident in which her son’s girlfriend was hospitalized and she had to take over care of the young woman’s dog. The applicant had to call in to work on two separate days to advise she could not attend. She alleges the second time she called in because the dog had whined all night and she had had no sleep, the owner fired her.

24The respondent company disputes it terminated the applicant and states Service Canada determined the applicant left her employment voluntarily. The owner submits she did expect the applicant to attend work because by then the young woman was in hospital and being cared for. The respondent asserts that during the telephone call, the applicant said that perhaps she should quit because she could not take everything that was going on, and the owner responded it was her prerogative.

analysis

Age Discrimination

25First, with respect to the applicant’s allegations with respect to age discrimination set out above at paragraph 12, including not being given a uniform for three months; other workers failing to assist her with the cleaning when she was being trained; the owner of the respondent (“the owner”) failing to make eye contact with her or communicate with her when she was working with Ashley; not being acknowledged for her 11 months of service at the 2012 Christmas party; only receiving a one year certificate of service at the 2013 Christmas party; the respondent not initiating a WSIB claim when the applicant was injured by a garage door; and being given the driving responsibilities of a captain even though the applicant was crew, the applicant pointed to no evidence that would establish a link to the Code and they have no reasonable prospect of success.

26With respect to the further allegations of age discrimination contained in paragraph 13 above, many of those are vague and non-specific, for example, that the owner promotes a “youth culture”, and that young workers are not held to account for their actions while “older workers” are criticized for being too slow. The applicant does not point to any specific evidence that supports discrimination against her on the basis of age as a result of these events, and as such, these allegations have no reasonable prospect of success.

27In addition, the allegation contained in paragraph 13 above that two workers were able to work on their own within a month of beginning their employment has no reasonable prospect of success, because the applicant pointed to no evidence that there was any link to the Code.

28With respect to the applicant’s allegation that she was denied a promotion to captain while two workers who were 27 and 23 were made captains within a short period of time, I cannot find on a preliminary basis that these allegations have no reasonable prospect of success.

29I appreciate that there appears to be no direct evidence to establish age discrimination in this case. Nevertheless, the Tribunal has long accepted that it is often difficult to establish direct evidence of discrimination and that the Tribunal must draw reasonable inferences from circumstantial evidence to decide whether discrimination has been proven on balance of probabilities.

30In determining whether the applicant can show a link between the proposed evidence and age discrimination, it is useful to examine what the applicant must establish in a full hearing on the merits to demonstrate a prima facie case. In cases involving hiring and promotion decisions, the Tribunal has found the following elements to be sufficient to establish a prima facie case of discrimination, based on circumstantial evidence:

a. that the applicant was qualified for the particular employment;

b. that the applicant was not hired [or in this case promoted]; and

c. that a considerably younger employee who was no better qualified than the applicant subsequently obtained the position. (see Clennon v. Toronto East General Hospital, 2009 HRTO 1242 and Girdharrie v. Cardinal Fasteners, 2012 HRTO 430)

31Based on a review of the applicant’s proposed evidence, it appears that the applicant can point to facts, which would be capable of supporting the first two elements of the test discussed in the Clennon and Girdharrie decisions. The third element of the test involves evidence, to which the respondent alone is privy to at this stage in the process.

32The Tribunal is mindful of the fact that in some cases an Application must proceed further in the hearing process simply because it is the respondent who has control over evidence which could favour the applicant’s case. There also may be other information that may become available through the hearing process, which sheds some light on this issue.

33It is not clear at this point in time, that this allegation has no reasonable prospect of success should the matter proceed to a full hearing.

34The same cannot be said of the applicant’s allegation in paragraph 13 above about Ashley being promoted to the office job. The applicant pointed to no evidence that she was qualified for the job, but stated only that the job was not posted and that no one was happy about this promotion because workers were needed on the road. Because the applicant points to no evidence that she was qualified for the position, she has not satisfied the first element of the test in the Clennon and Girdharrie decisions. As such, this allegation is dismissed as having no reasonable prospect of success.

Reprisal Allegations

35The reprisal section of the Code only applies to the actions of a respondent (or respondents) that are intended as a reprisal for any of the following: (1) claiming or enforcing a right under the Code; (2) instituting or participating in proceedings under the Code; or, (3) refusing to infringe the right of another person under the Code [s. 8]. See for example Mirea v. Canadian National Exhibition, 2009 HRTO 32; Chan v. Tai Pan Vacations, 2009 HRTO 273, Noble v. York University, 2010 HRTO 878 at para. 31. To proceed with the Application, there must be no reasonable prospect that the applicant could establish an intention on the part of the respondent to reprise against her for one of these three things.

36The applicant’s allegations that the respondent reprised against her after her vacation and after she spoke to the owner about Ashley’s comments about “gingers” do not satisfy any of the three requirements for a reprisal claim under the Code. The applicant’s vacation and the events that allegedly followed, and the discussion she had with the owner about Ashley’s comments about gingers, are not related to the applicant’s claiming or enforcing a right under the Code. As such, these have no reasonable prospect of success.

Family Status and Association

37The applicant’s allegation that the respondent fired her because of her family status in relation to her son’s girlfriend and because of her association with the girlfriend who she submits has a disability also has no reasonable prospect of success. There was no dispute between the parties that the applicant’s employment came to an end when she called in to report she would not be at work because the girlfriend’s dog kept her up and she got no sleep. The applicant pointed to no evidence that linked this to the Code.

ORDER

38The applicant’s allegation that she was discriminated against by not being promoted to captain status because of her age will continue in the Tribunal’s process and the Tribunal will schedule a one-day hearing to hear evidence about this allegation.

39The balance of the Application is dismissed.