Lee v. Halton Healthcare, 2017 HRTO 1522

Human Rights Tribunal of Ontario

B E T W E E N:

Rosemary Lee

Applicant

-and-

Halton Healthcare

Respondent

DECISION

Adjudicator: Yasmeena Mohamed

Date: November 20, 2017

Citation: 2017 HRTO 1522

Indexed as: Lee v. Halton Healthcare

APPEARANCES

Rosemary Lee, Applicant

Self-represented

Halton Healthcare, Respondent

Robert Little, Counsel

1The applicant filed an Application alleging discrimination with respect to employment because of disability, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant alleges that the respondent discriminated against her by failing to award her a position in the Post Anaestatic Care Unit (“PACU”) because of a negative performance reference given by her manager and her disability.

2By Case Assessment Direction (“CAD”) dated April 21, 2017, 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.

3The summary hearing proceeded on August 15, 2017. Having heard the oral submissions from the parties and reviewed their written submissions, I dismiss this Application on the basis that it has no reasonable prospect of success. The following are my reasons.

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.

5The 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 (Forde); Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201; Abdi 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 disability. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics were a factor in the treatment the applicant experienced. The Tribunal's jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code

6At 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 he or she was 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 a reasonable prospect that the applicant would be able to bring any evidence at a merits hearing to connect the unfair treatment experienced by the applicant with a ground protected under the Code.

7For 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: Forde, above. If the applicant is unable to point to any evidence he or she could advance at a hearing beyond his or her own assumptions or beliefs, the application will be found to have no reasonable prospect of success.

8Having 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 alleged in this particular case.

FACTUAL BACKGROUND

9The applicant was hired as a registered nurse (“RN”) in the respondent’s Intensive Care Unit (“ICU”) in 2014. She was a member of the Ontario Nurses Association‘s (“ONA”) bargaining unit and her terms and conditions of employment were governed by a collective agreement between ONA and the respondent.

10The applicant has a visible disability that required no accommodation in her position as a RN in the ICU.

11The applicant alleges that in April 2016, she applied for a part-time RN position in the PACU. The respondent granted her an interview for the position, but denied her the position because her manager, JG, gave her a negative performance reference.

12The applicant alleges that JG’s negative performance reference raised unwarranted concerns about her communication skills and she was denied the PACU position as a result. The applicant further alleges that JG’s negative performance reference tainted her good working record and reputation in the hospital.

13The applicant alleges that she ought to have been awarded the PACU position because she had greater seniority, far more experience, abilities and skills than the successful candidate, including very strong communication skills attained from her previous non-RN related occupations. The applicant alleges that the successful candidate was not a member of the bargaining unit, had less seniority, experience and skill than the applicant and her placement into the position was contrary to the terms of the collective agreement.

14The applicant resigned from her employment shortly aftewards because, in her view, the negative performance reference affected her reputation and ability to find employment as a RN.

15The respondent disagrees and alleges that the applicant was not denied the PACU position because of her negative performance reference and/or disability. The respondent submits that the applicant did not get the PACU position because she performed poorly in her interview and lacked PACU experience. The successful candidate, who was also a bargaining unit member, had this experience. The respondent further submits that the applicant's disability was not a factor in its original decision to hire her for a position in the ICU and therefore was not a factor in its decision not to hire her for the PACU position.

ANALYSIS AND DECISION

16Even if I accept the facts put forward by the applicant as true and provable, I find that the Application stands no reasonable prospect of success under the Code.

17As 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 they could call in a merits hearing to 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 discrimination has occurred. See for example Leong v. Ontario (Attorney General), 2014 HRTO 311.

18At the summary hearing, the applicant was asked to clarify her allegations and to explain the connection she sees between the respondent’s alleged conduct and her disability. The applicant explained that in her view the decision to deny her the PACU position was discriminatory because JG lied to her and unjustifiably gave her a negative performance reference. In addition, she is more senior, experienced and skilled than the successful candidate.

19Even if I accept the respondent denied the applicant the position for any or all those reasons, the applicant has not pointed to evidence she could call in a merits hearing to support a link between the respondent’s decision and her disability.

20The applicant may be better qualified than the successful candidate. JG may have provided a negative reference. The respondent's decision not to award the PACU position to the applicant may have been unfair. Those are issues which might well be the basis of a grievance arbitration. But the applicant has not provided any explanation or basis on which I could conclude her disability was a factor in the respondent's decision and that is the only issue this Tribunal can consider.

21For these reasons, I find the Application has no reasonable prospect of success.

ORDER

28The Application is dismissed.