Rocchetti v. Callan Property Management Group Inc., 2016 HRTO 663

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Davy Rocchetti

Applicant

-and-

Callan Property Management Group Inc. and Paul Delahunty

Respondents

DECISION

Adjudicator: Douglas Sanderson

Date: May 17, 2016

Citation: 2016 HRTO 663

Indexed as: Rocchetti v. Callan Property Management Group Inc.

WRITTEN SUBMISSIONS

Davy Rocchetti, Applicant

Davy Rocchetti, Self-represented

Callan Property Management Group Inc. and Paul Delahunty, Respondent

Paul Delahunty, Representative

1This is an Application filed on under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to contracts because of sex, including sexual harassment.

2The background to this Application is a commercial dispute between the parties. In his Application, the applicant states that he operates a construction company that contracted with the organizational respondent to perform certain work. The applicant alleges that the work was completed, but the organizational respondent did not pay some of the applicant’s invoices. The applicant alleges that he spoke on the telephone with the individual respondent, the owner of the organizational respondent, in the morning of August 26, 2014. The applicant alleges that the individual respondent made a statement to the effect that he would not pay the applicant because he believed the applicant was “sleeping with SD”, a female employee of the organizational respondent, and threatened to charge the applicant with extortion. The parties agreed to meet later that morning on the organizational respondent’s premises. The applicant states that the individual respondent again stated that he would not pay the applicant because he was sleeping with SD (who was present) and threatened to charge the applicant and SD with extortion.

3The respondents state that the applicant was hired on the recommendation of SD, who had previously worked with the applicant. The respondents state that the applicant’s company did not complete the work it contracted to perform in a satisfactory manner and the respondents directed the applicant’s company to cease work in early August 2014, in light of the performance defects. The applicant delivered several invoices for his company’s work and the respondents disputed the amounts owed. On the morning of August 26, 2014, the applicant called the organizational respondent and spoke to the individual respondent. In the course of the conversation, the applicant revealed knowledge of another project under consideration by the respondents. The respondents state that very few people knew about this project, one of whom was SD. The individual respondent advised the applicant that he was suspicious of the applicant’s relationship with SD and that the only way he could have known about the project was if he and SD “were in bed together on this whole matter.” The individual respondent invited the applicant to meet at the organizational respondent’s head office.

4The parties met later that morning. The applicant was asked how he knew about the project under consideration by the respondents, since he could not know unless he was informed by someone on the respondents’ staff. The individual respondent stated that it was apparent that the applicant could not have known about the project unless SD had disclosed the confidential information. The respondents state that the applicant advised that he has “connections” within the City of Mississauga and stated that he was not sleeping with SD. SD, who attended the meeting, became upset and the meeting concluded.

The hearing

5By Case Assessment Direction Dated May 28, 2015, the Tribunal directed that a preliminary/summary hearing be held to determine whether the Application should be dismissed as an abuse of process in light of a full and final release the parties executed and whether the Application should be dismissed for having no reasonable prospect of success. The Tribunal held the preliminary/summary hearing by teleconference on January 4, 2016.

6At the commencement of the hearing I noted that the applicant’s allegations are that the individual respondent accused him of having a sexual relationship with one of the respondents’ employees, SD, which the individual respondent considered improper. Accordingly, I informed the applicant that he needed to explain how this accusation amounts to harassment because of sex. I also noted that the Code prohibits sexual harassment with respect to housing and employment, but not with respect to contracts, the social area in which the applicant states the Application falls. Rather section 3 of the Code protects the right to contract on equal terms without discrimination. Accordingly, I informed the applicant that he also needed to explain how his allegations amount to a violation of the Code at all.

Submissions

7The applicant submitted that although he was not employed by the respondents the alleged harassment occurred in his workplace. The applicant submitted that the respondents were looking for a way to avoid paying him and made the accusation about SD as a scare tactic. The applicant submitted that the individual respondent twice asked him who he was sleeping with – once during their telephone conversation and again at their meeting. The applicant submitted that during the meeting the individual respondent was interested in two things: who the applicant was sleeping with and how he knew about the respondents’ project.

8The respondents submitted that the applicant threatened to interfere with a project the respondents were considering. The applicant should not have known about the project and the individual respondent asked him how he received this information. The respondents stated that the applicant’s relationship with SD appeared questionable and the individual respondent stated that the applicant could only know about the project if he was “in bed together” with SD. The respondents submitted that this is a common idiom connoting collusion or collaboration. The respondents submitted that they have no knowledge of either the applicant’s or SD’s private lives. The respondents submitted that the meeting later in the morning of August 26, 2014 was short and no comment to the effect that the applicant was sleeping with SD was made.

9In Reply, the applicant submitted that the respondents had admitted that they stated that the applicant was in “bed together” with SD, which he stated was shocking to hear. The applicant submitted that at the meeting, the individual respondent wanted to know how he knew about the respondents’ project and he responded that he had received the information through his contacts in Mississauga. The individual respondent did not believe him and said that he believed the applicant was “in bed together” with SD.

Analysis and Decision

No Reasonable Prospect of Success

10The relevant Code provisions are as follows:

3. Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

4. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

7(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.

10. (1) In Part I and in this Part,

“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome;

11In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments with respect to the Tribunal’s summary hearing process 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.

12The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201, and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, colour or ethnic origin. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced. At the summary hearing stage, the Tribunal does not determine whether the applicant is telling the truth or assess the impact of the treatment they experienced. There is no question that acts of unfairness that are not legally discriminatory can cause significant harm.

13At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. An application has no reasonable prospect of success when the applicant’s allegations, assumed to be true, cannot amount to a breach of the Code. An application will also have no reasonable prospect of success if the applicant cannot point to evidence that he has or has reasonably available to him connect the unfair treatment experienced by the applicant with a prohibited ground of discrimination. If the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the application may be found to have no reasonable prospect of success.

14As noted above, section 3 of the Code protects the right to contract on equal terms without discrimination. Section 3 does not address harassment or sexual harassment in contracts; therefore, the applicant’s allegations of sexual harassment do not come within the protection afforded by section 3 of the Code. Consequently, the applicant has no reasonable prospect of success of establishing a violation of the Code under section 3.

15In order to establish a case of sexual harassment, the applicant must prove, on a balance of probabilities, that (1) the individual respondent was his employer, his employer’s agent, or another employee; (2) the individual respondent harassed his by engaging in a course of vexatious comment or conduct towards his that was known or ought reasonably to have been known to be unwelcome; (3) the individual respondent harassed him in the workplace; and (4) the individual respondent harassed him because of his sex. See ss. 7(2) and 10(1) of the Code.

16Assuming, without deciding, that the applicant meets the first three criteria needed to establish sexual harassment, I find that the applicant has no reasonable prospect of establishing that the individual respondent’s comments were related to his sex. The allegations set out in the Application have no connection to the applicant’s sex. If true, the individual respondent’s alleged accusation that the applicant was having an inappropriate sexual relationship with SD, an employee of the respondents, is no more than a statement of fact. The context provided in the Application gives no indication that the individual respondent made the comment because of the applicant’s gender or that the relationship between the parties had become sexualized. The applicant pointed to no evidence that he has or has reasonably available to him that would connect the individual respondent’s comments to the applicant’s sex. Rather, on the applicant’s account, the individual respondent was concerned that his employee, SD, was engaged in an inappropriately intimate relationship with a person doing business with the respondents and voiced these concerns. The individual respondent would have been entitled to express such concerns. The mere fact that the individual respondent is alleged to have commented on a sexual matter does not make the comment discriminatory or harassing. The allegations do not amount to sexual harassment under the Code and have no reasonable prospect of success.

17During the hearing, the applicant submitted that the respondents accused him of having a sexual relationship with SD to avoid paying his invoices. In Reply, the applicant submitted that the individual respondent stated that the applicant knew about the respondents’ construction project because he and SD were “in bed together.” Even assuming these allegations are true, for the purposes of the summary hearing neither amounts to an allegation of discrimination or harassment because of sex. The dispute about the applicant’s invoices arose out of his contractual relationship with the respondent’s and cannot be said to relate to employment. In any event, the fact that the individual respondent made a statement of fact related to an alleged sexual relationship does not make the statement discriminatory or harassing, as noted above. The applicant pointed to no evidence that he has or has reasonably available to him that could connect the accusation to his sex or that indicates that the comment sexualizes the parties’ relationship. Stating that two people are “in bed together” is a common off colour expression that can be taken to mean that the people in question are working closely together. In the context provided by the applicant, the individual respondent’s comment clearly means that the he believed that SD gave the respondent the information about the respondents’ construction project. There is nothing sexual about this statement. The allegations cannot amount to discrimination or sexual harassment under the Code and therefore have no reasonable prospect of success.

18As the Application will be dismisses because it has no reasonable prospect of success, it is unnecessary to address whether it may be an abuse of process.

19The Application is dismissed.