HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Shereen Malcolm
Applicant
-and-
Starbrite Dental and Dilvir Toor
Respondents
DECISION
Adjudicator: Jacek Janczur
Indexed as: Malcolm v. Starbrite Dental
APPEARANCES
Shereen Malcolm, Applicant
Chantelle Perera, Counsel
Starbrite Dental and Dilvir Toor, Respondents
Jonquille Pak, Counsel
Introduction
1The applicant filed an Application alleging that the respondent discriminated against her 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.
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. Even if I accept all of the facts alleged by the applicant as true, the applicant has not been able to point to any evidence beyond her own suspicions that the respondent has discriminated against her on the basis of age, colour, disability, age and sex.
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, 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 applicant is able to point to any information which tends to support his or her belief that 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 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.
Factual Background
10The applicant worked at a dental practice as a dental assistant. There were two dentists who ran the practice, Dr. T and Dr. B. The applicant was employed on a casual basis and had been employed for a period of just under two years.
11The applicant identifies as a young, black woman from Jamaica. She states that she suffers from a number of medical conditions that required that she be absent for medical appointments frequently.
12The applicant was terminated from her employment and at the time of her termination she was pregnant. The applicant states that her pregnancy was high risk.
13The applicant alleges that she was subjected to discriminatory treatment in a number of ways.
14She alleges that on Thursday, May 7, 2015 she submitted a written request for the day off on Monday, May 11, 2015. She requested that a temporary assistant be brought in for that day. The respondent granted the applicant the day off and a temporary assistant was retained for that day.
15The applicant alleges that when discussing her pregnancy with Dr. T he told her that he would not have another child 14 years after having the previous child.
16The applicant states that she was required to provide a doctor’s note when she was absent but that when she pointed out that there was a twenty-five dollar fee associated with obtaining a doctor’s note, she was no longer required to do so.
17The applicant alleges that her daughter had an appointment to have her teeth cleaned and that her teeth were not cleaned because she arrived late for the appointment.
18The applicant alleges that she was not given the keys to the storage closet after the keys had to be changed while she was away on a trip to Jamaica and that she did not have access to keys that other staff had.
19The applicant alleges that Dr. B turned off the television on which she was watching a documentary that her daughter had taken part in.
20The applicant alleges that her employment was terminated because she told one of the dental hygienists how to do