Rowena Young v. Costco Wholesale Canada Ltd. and Kelly Barber, 2017 HRTO 1466

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rowena Young

Applicant

-and-

Costco Wholesale Canada Ltd. and Kelly Barber

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: November 7, 2017

Citation: 2017 HRTO 1466

Indexed as: Young v. Costco Wholesale Canada Ltd

APPEARANCES

Rowena Young, Applicant

Self-represented

Costco Wholesale Canada Ltd. and Kelly Barber, Respondents

Paul Macchione, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of gender identity and marital status. On the face of the Application, however, the applicant’s allegations also engage the prohibited ground of disability or perceived disability and sex.

Background

2The applicant is employed by the organizational respondent (“Costco”) and the individual respondent is a co-worker. The applicant alleges that the individual respondent began a romantic relationship with the applicant’s husband from whom she is separated. The applicant alleges that the individual respondent provided personal information related to the applicant’s employment to the applicant’s husband and that this information was used against her in legal proceedings between her and her husband. The applicant alleges that the individual respondent spread gossip about the applicant in the workplace by word of mouth and by social media. Amongst other things, the applicant alleges that the individual respondent referred to her as “the crazy one” and the “crazy bitch” and stated that the applicant was stalking the individual respondent’s house. The applicant alleges that Costco did nothing to address the individual respondent’s behaviour and instead gave the applicant a warning for trying to get the individual respondent fired.

3In their Response, the respondents deny any violation of the Code. The respondents state that Costco investigated the applicant’s allegations that the individual respondent divulged personal information about the applicant and engaged in a campaign of gossip about her. Costco determined that the applicant’s allegations were unfounded and that it was the applicant herself who disseminated information about her personal situation.

The Hearing

4By Case Assessment Direction dated December 22, 2016, the Tribunal set this matter down for a summary hearing to determine whether the Application should be dismissed, in whole or part, because it has no reasonable prospect of success. The Tribunal held the summary hearing by teleconference on July 19, 2017.

Submissions

5The applicant submitted that in September 2015 the individual respondent told other employees that the applicant was a “psycho bitch” and that they should not associate with the applicant. The applicant advised management, but her concerns were laughed off and no action was taken. After the applicant moved to the Tire Centre in early November 2015, a co-worker, TC, informed her that the individual respondent continued to advise other employees not to speak to the applicant because she is a “crazy bitch”. TC advised management of the allegation, but the applicant was not informed of any outcome. The applicant states that she returned to work in November 2016 after a 10 month leave of absence. After her return, she was informed that another co-worker, Farah, was making up stories about the applicant and calling her “crazy”. The applicant raised the issue with the Manager of Human Resources, but alleges that the Manager of Human Resources was close with the individual respondent and not concerned with the applicant’s issues.

6The applicant submitted that the individual respondent made up allegations against the applicant to get her fired in June 2017. The applicant also submitted that the individual respondent provided the applicant’s husband with information related to her employment, e.g. schedules, sick days, purchases etc. Management was unwilling to assist her. The applicant submitted that everything was fine in her employment until her co-workers found out about her marital status. Once this was revealed the applicant experienced a dramatic change for the worse in her work environment.

7The respondents submitted that the applicant’s allegations are not tied to the grounds alleged in the Application. The respondent submitted that the applicant’s allegations are bald allegations of interpersonal conflict and name calling that have no connection to the Code grounds of marital status and gender identity.

Analysis and Decision

8Section 5 of the Code states as follows:

5. (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.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

9Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an 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.

10In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments regarding the concept of no reasonable prospect of success 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.

11The 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. In a summary hearing, 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.

12At 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. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The 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. However, 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.

13I agree with the respondent that the applicant’s allegations consist mostly of issues of interpersonal conflict and privacy concerns that have no connection to the Code. Moreover, the applicant’s allegations do not appear to have any connection to the grounds of marital status or gender identity. These allegations have no connection to the Code and therefore have no reasonable prospect of success.

14The allegations that the individual respondent repeatedly referred to the applicant as a “crazy or psycho bitch”, however, engage the grounds of disability or perceived disability and sex. The Tribunal will generally consider applications based on the Code grounds arising out of the substance of the applicant’s allegations even if those grounds have not been selected on the application form. See Talwar v. Grand River Hospital, 2016 HRTO 1682, Atanasov v. Baycrest Centre for Geriatric Care, 2014 HRTO 797. The applicant is an unrepresented litigant and it would be in my view inappropriate to dismiss her Application for the narrow technical reason that she selected the wrong Code grounds. In my view, these allegations, if proven, could amount to discrimination and/or harassment because of disability or perceived disability and/or sex and I cannot find that these allegations have no reasonable prospect of success. Pursuant to Rule 19.6A, where the Tribunal decides not to dismiss an Application following a summary hearing, it need not give reasons and I find it unnecessary to comment further.

Order

15The Tribunal orders as follows:

1. The Application shall continue regarding the allegations that the individual respondent referred to the applicant as “crazy bitch” or a “psycho bitch”; and,

2. All of the applicant’s other allegations are dismissed.