Tian v. Mike Niven Interior Design Inc., 2016 HRTO 975

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rongzhen (Tina) Tian

Applicant

-and-

Mike Niven Interior Design Inc.

Respondent

DECISION

Adjudicator: Aida Gatfield

Date: July 25, 2016

Citation: 2016 HRTO 975

Indexed as: Tian v. Mike Niven Interior Design Inc.

APPEARANCES

Rongzhen (Tina) Tian, Applicant

Self-Represented

Mike Niven Interior Design Inc., Respondent

Israel Balter, Counsel

Introduction

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

Summary Hearing

2By Case Assessment Direction dated December 11, 2015, the Tribunal directed that a summary hearing be held to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed. The summary hearing was held on March 22, 2016.

3The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure 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.

4The Tribunal cannot address general allegations of unfairness, unrelated to the Code, in areas such as employment, services or accommodation. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, gender or disability. 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.

5The test that is applied at a summary hearing is whether an application should be dismissed in whole or in part because it has no reasonable prospect of success. At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. Indeed, many experiences of unfairness, which are not defined as discrimination in the legal sense, can leave a person with significant financial and emotional damage.

6The 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. In some cases, for example, the applicant will not dispute the respondent’s version of one or more of the facts.

7Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from any facts or evidence the applicant is able to point to which tend to support the applicant’s belief that they have experienced discrimination.

8The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. If the applicant is unable to point to circumstances beyond their own assumptions or belief, the application may be found to have no reasonable prospect of success.

9The parties are given an opportunity to make submissions, usually on a telephone conference call, during a summary hearing. These submissions are often helpful in clarifying the nature of the allegations.

10The primary focus in the summary hearing is on the applicant’s evidence. The respondent’s explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events.

11The Tribunal is also mindful of the fact that in some cases the application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could assist the applicant’s case.

12Having set out the basic framework for determining whether an application should be dismissed in whole or in part for no reasonable prospect of success, I now turn to the facts of this particular case.

ANALYSIS

13The applicant alleges that she was subjected to discrimination with respect to employment because of age. When asked what evidence she would be relying upon in support of the allegation, the applicant pointed to a number of workplace incidents, which she found to be unfair. The applicant alleged that she was asked to take on more responsibility and that she would be given a raise in salary. She took on the additional responsibility but did not get the raise. Further, she alleged that her workload was overwhelming, which caused her health problems. In addition, when a new employee was hired, the applicant was moved from her desk to another desk. The applicant also objected to a written warning she received February 4, 2014 which expresses concerns regarding the applicant’s work performance and the nature of her relationship with management and her peers. The letter sets out expectations going forward and warns that further unacceptable behaviour would result in further discipline up to and including termination of employment. The applicant was unable to point to any evidence in her possession or evidence that may reasonably be available to her linking those incidents and the respondent’s actions to the ground of age.

14The only evidence the applicant was able to point to which referenced her age is email communications between a representative of the respondent and its legal counsel. The applicant did not provide the emails to the Tribunal. However, in the course of the summary hearing, she read portions of the emails. I note that the communication is a privileged communication between client and legal counsel, which may not be admissible at a hearing. For the purposes of the summary hearing I have assumed that the evidence would be admissible. Nevertheless, in my view, it would not be appropriate at this point to set out the details contained in the emails. In general terms, in the course of discussing the applicant’s employment and possible termination, the applicant’s age was requested (and provided) and considered as one of the factors in determining the appropriate reasonable notice. The applicant also stated that the email exchange included reference to her employment agreement and how long she has been an employee. In subsequent communication, legal counsel provided advice on what the reasonable notice would be as well as how the employer should proceed.

15Respondent counsel objected to the Tribunal considering this evidence as it had not been filed with the Tribunal and it appeared to be a reference to privileged communication between legal counsel and his client. The respondent argued that absent this email evidence, the applicant has no factual evidence that is probative to her bald allegation of age discrimination. In the alternative, even if the email evidence is considered, the only reference to the applicant’s age is in the context of a legal assessment of reasonable notice.

16In the course of respondent counsel submissions, he referred to Morrison v. TD Securities 2014 HRTO 1280 in support of the principle that the Tribunal should dismiss an application where the claim is a bald allegation based on the applicant’s suspicions. In that case, the alleged ground of discrimination was race.

17In her reply submissions, the applicant sought an explanation as to why respondent counsel was referring to race. It was explained to the applicant that the respondent was relying on the principles noted in that decision; however in that case the ground cited was race not age. At that time, the applicant stated that she feels that the respondent also engaged in discrimination based on race, disability and reprisal.

18By Case Assessment dated March 29, 2016, the applicant was directed to file a Request for Order During Proceedings (“RFOP”) if she wished to amend her application. The applicant did so. The applicant did not identify any new grounds in the RFOP. In response to the question “What are the reasons for the Request, including any facts relied on and submissions in support of the Request?” the applicant submitted, “I request to claim further Human Rights Code under section 34.” The Respondent did not file a Response to the RFOP.

19In determining requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondents. See, for example, Odell v. TTC, [2001] OHRBID No. 2, Dube v. Canadian Career College, 2008 HRTO 336, and Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.

20In this case, the applicant first raised the issue in the course of the summary hearing. She did so upon hearing “race” referred to in another case. In her RFOP, she has not indicated what amendment she seeks or any facts in support of the amendment. Accordingly, the request to amend is denied.

21In this case, based on the applicant’s pleadings and oral submissions, I find that her real concern is with workplace decisions, unrelated to the Code, which the respondent made and with which the applicant disagreed. The Tribunal has held on many occasions that it does not have jurisdiction over general claims of unfairness unrelated to the Code. See, for example, Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at para. 27 and Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 at para. 10. The Tribunal’s jurisdiction is limited to claims of discrimination and reprisal under the Code.

22While I appreciate that the applicant feels that she was treated unfairly as an employee, she has not pointed to any evidence in her possession or that may be reasonably available to her which would support her allegation that such treatment was based on age. As noted above, the only time her age was mentioned was in the context of the respondent seeking legal advice with respect to the applicant’s employment. Even accepting her evidence of the communication between the respondent and its legal counsel as true, the evidence shows that legal counsel was providing an assessment of what reasonable notice would be owed should the respondent decide terminate the applicant’s employment without cause. Age was noted as one factor, along with other factors such as the applicant’s length of employment and her employment contract, which was considered in that assessment. It is well established in case law that an employee’s age is an appropriate factor to be considered by an employer in determining reasonable notice: see Bardal v. Globe & Mail Ltd. (1960), 1960 CanLII 294 (ON HCJ), 24 D.L.R. (2d) 140. Given the context in which the applicant’s age was discussed, the Application has no reasonable prospect of success.

23The application is dismissed.