Tredwell v. Wal-Mart Canada Corp., 2016 HRTO 522

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deborah Tredwell

Applicant

-and-

Wal-Mart Canada Corp.

Respondent

DECISION

Adjudicator: Bruce Best

Date: April 21, 2016

Citation: 2016 HRTO 522

Indexed as: Tredwell v. Wal-Mart Canada Corp.

APPEARANCES

Deborah Tredwell, Applicant

Self-represented

Wal-Mart Canada Corp., Respondent

Joel Thomas, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of citizenship, marital status and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Case Assessment Direction (“CAD”), the Tribunal directed that a summary hearing be held to address whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed. The summary hearing in this matter was held on January 26, 2016 by teleconference.

3I find that the Application has no reasonable prospect of success under the Code, and must be dismissed.

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 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 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 her belief that 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.

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 a breach of the Code.

9Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Co-ordination of Breaks

10The applicant’s main complaint is that the co-ordination of lunch and breaks, which need to be staggered throughout the day given the nature of the respondent’s business, was largely left up to the associates to work out amongst themselves. She claimed that members of a certain group within the workplace, whom she referred to as the “Facebook and Smoker elite”, would socialize during their smoke breaks, or would discuss Facebook in the employee locker room. The applicant is a non-smoker and is not on Facebook. She claims that the members of this group would take the times they wanted to best suit themselves, and as a result she has been unable to take her lunch or breaks at appropriate times, and that she would often miss them altogether because no one was available to cover her. She claims that this group included some managers, and that as a result management decisions were made to benefit this group at the expense of those, such as herself, who were not part of the group. The applicant also made it clear that she was not interested in becoming part of this group; she is a non-smoker, and indicated she has no interest in joining Facebook.

11In the narrative of her Application, the applicant did not claim any connection between the scheduling problems and her age or her marital status. At the hearing, when questioned by the Tribunal on this point, the applicant suggested that her difficulties in the workplace might be because of her age or the fact that she was single. However, beyond this speculation, she was not able to point to any evidence that would support such a connection.

12As noted above, for an application to advance to a full hearing on the merits, an applicant must be able to point to some evidence, beyond her or his own suspicions, that could make out a link to the Code. The Tribunal has repeatedly said that an applicant’s belief, no matter how strongly held, is not evidence upon which the Tribunal might find that discrimination has occurred. See for example Leong v. Ontario (Attorney General), 2014 HRTO 311.

13I find that the applicant has not been able to point to any evidence that would support her belief that the scheduling problems she claims would amount to discrimination under the Code, and these allegations must therefore be dismissed.

Incidents involving other employees

14The applicant, in the Application and in her oral submissions at the hearing, also described other incidents which she considered to be mistreatment of other employees. The applicant claimed that the employer would not have treated immigrant or disabled employees the same way, though she did not point to any evidence that would support this claim.

15She was not able to point to any adverse treatment she personally experienced as a result of these incidents, as she was not personally involved. She has not brought this Application on behalf of another person under s.34(5). In order to establish discrimination, the applicant must be able to demonstrate that she herself was subject to adverse treatment. See Freitag v. Penetanguishene (Municipality), 2010 HRTO 1704, at paras 5-8. I find the Tribunal has no jurisdiction to consider these allegations, and as such they are also dismissed.

Reprisal

16The applicant also alleges that she was subject to reprisal when store management called her to a meeting for saying she was going to complain directly to “Home Office” about the lunch and break scheduling issue. She said she included “citizenship” as a ground because she felt that, as a Canadian citizen, she had a right to be treated fairly, and a right to speak freely.

17However, the ground of “citizenship” in the Code is not to protect the fundamental rights that are given to a person as a citizen of Canada. Rather, it is included to address incidents where a person is subject to differential treatment because they are or are not a Canadian citizen. The applicant has not been able to point to anything that would substantiate her claim that she was discriminated against by the respondent because of her being a Canadian citizen, and this allegation too must be dismissed.

Summary

18The Tribunal has no jurisdiction to deal with general claims of unfairness or mistreatment if such unfairness or mistreatment does not constitute discrimination under the Code. For the reasons given above, I must find that the Application stands no reasonable prospect of success under the Code.

Order

19The Application is dismissed.