Tammy Pankhurst v. Ontario (Community Safety and Correctional Services), 2017 HRTO 1321

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tammy Pankhurst Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw Date: October 5, 2017 Citation: 2017 HRTO 1321 Indexed as: Pankhurst v. Ontario (Community Safety and Correctional Services)

APPEARANCES

Tammy Pankhurst, Applicant Amy Mintah, Counsel

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services, Respondent Marnie Corbold, 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.

3The summary hearing was heard by telephone conference call and both parties made submissions.

4I find that the Application will continue in the Tribunal's process.

Summary Hearing Process

5The 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.

6The 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.

7The 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.

8However, 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 he or 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.

9As 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.

10Having 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

11The applicant alleges discrimination in employment or services on the basis of age, sex and gender expression. By way of background, the respondent made the applicant an offer of employment conditional on completion of the Correctional Officer Training and Assessment ("COTA") program. The applicant was in her 40's and older than most other recruits who she alleges were in their 20's. Prior to her completing the COTA, the respondent dismissed the applicant for two incidents she alleges would not have got a male recruit dismissed. In one incident, she entered the male residence and feigned as if she was going to pull the towel off a male recruit, but did not do so. In the other, she grabbed the buttocks of two male recruits during a role play in which the recruits were acting out a harassment scenario. The males directly involved in the incidents stated they did not think the applicant had any ill intent.

12The applicant further alleges she experienced differential treatment because the respondent investigated these two incidents, but did not investigate her reports of harassing comments she alleges were made to her.

13The applicant alleges she was treated differently because of her age and sex. When asked about gender expression, she advised that if the Application proceeds, she will advise if she intends to pursue that ground. The respondent agreed that was fair.

Findings

14It is important to note again that the test in a summary hearing is if there is no reasonable prospect that the Application could succeed. A decision by the Tribunal to allow an application to proceed after a summary hearing does not mean that the application will succeed. It only means that the Tribunal is satisfied that there are allegations that, if proven, could result in a finding of a Code infringement and that the allegations are sufficiently plausible that it cannot be said that there is no reasonable prospect that they could be proved by the applicant.

15As 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 his or her 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.

16Rule 19A provides that where the Tribunal decides not to dismiss the Application following a summary hearing, it need not give reasons.

17In my view, if proven, the applicant's allegations could result in a finding that the applicant's Code-protected rights were infringed. I am also satisfied that the allegations are sufficiently plausible that it cannot be said that there is no reasonable prospect that the Application, in whole or in part, could succeed, particularly at this early stage before any document production.

18For the above reasons, the Application shall continue in the Tribunal's process.

order

19The respondent filed a Response to the Application and the applicant filed a Reply. The applicant has agreed to mediation but the respondent did not do so in the Response. If the respondent agrees to participate in mediation, it must confirm its intention in writing to the Tribunal and to the applicant within 7 days of this Interim Decision. If the respondent does not wish to participate in mediation or if it does not respond within 7 days of this Interim Decision, the Tribunal will proceed to schedule the matter for a one day hearing.