Treleaven v. Forster Instruments Inc., 2016 HRTO 664

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Katerina Treleaven

Applicant

-and-

Forster Instruments Inc.

Respondent

DECISION

Adjudicator: Keith Brennenstuhl

Date: May 17, 2016

Citation: 2016 HRTO 664

Indexed as: Treleaven v. Forster Instruments Inc.

APPEARANCES

Katerina Treleaven, Applicant

Self-represented

Forster Instruments Inc., Respondent

Brian Silva, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”), alleging discrimination with respect to employment because of marital status and reprisal or threat of reprisal.

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 CAD advised the applicant that during the summary hearing she would need to make submissions about why the Application should not be dismissed for having no reasonable prospect of success and would need to provide details of the evidence she intended to rely on to show the link between the respondent’s actions and the grounds of discrimination she has alleged.

3As explained more fully below, I find that the Application must be dismissed on the basis that it has no reasonable prospect of success under the Code.

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, 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, 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 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, 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.

Background

10The basis of the applicant’s allegations of discrimination, as set out in the Application and as stated at the summary hearing are related to her interactions with co-workers during her employment with the respondent, the allegedly unacceptable behaviour of co-workers, and the termination of her employment which the applicant maintains was without cause. The applicant alleges that she was the only individual working for the respondent who was not in a relationship.

11The respondent’s position is that the applicant has failed to plead a prima facie case since the material facts alleged, if true, do not constitute violations of the Code. Further, the respondent submits that the Application and Reply do not support the grounds claimed and the particulars, if they are believed, are neither complete nor sufficient to justify a finding in the Applicant’s favour, even in the absence of an answer from the respondent.

Findings

12As noted above, for an application to advance to a full hearing on the merits, the applicant must be able to point to some evidence beyond his or her own suspicions that could make out a link to the Code. The Tribunal has repeatedly stated that an applicant’s belief, even if honestly held, is not evidence upon which the Tribunal might find that discrimination occurred. See for example Leong v. Ontario (Attorney General), 2014 HRTO 311.

13The applicant alleges that she was treated differently on the basis of marital status, however, her complaint makes no connection between her treatment and her marital status. The applicant must link the alleged discriminatory treatment and her marital status.

14The applicant has alleged that she is the only individual working for the respondent who is not in a relationship. This is insufficient to establish Code related discrimination. In Jagait v. IN TECH Risk Management, 2009 HRTO 779, the Tribunal stated that the mere fact of being “the only Punjabi Sikh employee in the company” coupled with being terminated was insufficient to justify a finding of discrimination.

15The applicant also alleges that she was discriminated against on the basis of reprisal or threat of reprisal. The test for establishing reprisal is set out in Noble v. York University, 2010 HRTO 878. A reprisal or threat of reprisal is established when: an action was taken against or a threat was made to the claimant; the alleged action or threat was related to the claimant having claimed or attempted to enforce a right under the Code; and, there was an intention on the part of the respondent to retaliate for the claim or the attempt to enforce the right. In the instant Application, there are no allegations of the applicant claiming or trying to enforce a Code right.

16The Code is not designed to remedy all instances of perceived unfairness. The alleged treatment must be linked in a substantive way to a Code ground. The applicant must show more than mere subjective suspicion or speculation to establish a link between the respondent’s alleged conduct and the grounds pleaded. There must be at least some objective facts and circumstances to support the theory linking the respondents’ action with the Code. Here, I do not see that the applicant has alleged any facts that would be capable of establishing such a link.

17Accordingly, I find that this Application has no reasonable prospect of success.

ORDer

18For the above reasons the Application is dismissed.