Batchelor v. Woodbridge Foam Corp., 2017 HRTO 1699

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Blossom Batchelor

Applicant

-and-

Woodbridge Foam Corp. (Kipling Branch) and Bill O’Brien

Respondents

DECISION

Adjudicator: Leslie Reaume

Date: December 22, 2017

Citation: 2017 HRTO 1699

Indexed As: Batchelor v. Woodbridge Foam Corp.

APPEARANCES

Blossom Batchelor, Applicant

Denise Boyce, Representative

Woodbridge Foam Corporation, Respondent

Matthew Demeo, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges reprisal and discrimination with respect to employment because of race and colour. The applicant also indicates that she experienced discrimination in employment on the basis of sexual harassment, a poisoned work environment and in discipline.

2The Application was initially deferred without objection on the basis of an ongoing grievance process. The Tribunal granted the applicant’s request to reactivate and amend her Application on August 15, 2016 (2016 HRTO 1084). The amendments included adding the prohibited grounds of ancestry, place of origin and sex, including sexual harassment, as well as a request for $50,000.00 in monetary compensation and public interest remedies.

3By Case Assessment Direction November 21, 2016, the Tribunal set this matter down for a summary hearing to consider whether the Application has “no reasonable prospect of success.” The Tribunal issued an Interim Decision on December 21, 2016 denying the applicant’s request to have the summary hearing conducted in writing (2016 HRTO 1561).

4As part of her Application the applicant filed the following supporting documents: a complaint report filed with the respondent employer and a letter dated August 9, 2015 which “acknowledges the issues I had with the manager”; a copy of the grievance filed on the applicant’s behalf after the respondent employer’s investigation was completed; and a statement the applicant prepared on September 16, 2015, which contained her concerns about how the investigation was conducted and alleged that she was advised that if her statement was false it could lead to suspension or dismissal.

5The applicant alleges that she was harassed at work by the individual respondent, Bill O’Brien, and that her internal complaints were not properly dealt with by the respondent employer. In addition to the internal complaint, a grievance was initiated on August 27, 2015. The grievance seeks full redress for the events described in the applicant’s written complaint which include the following:

• a comment allegedly made by the individual respondent to another employee: “she thinks she is so special, I am going to fix her”;
• two incidents of the individual respondent closely monitoring the applicant’s movements at work, following her and staring at her;
• one incident where the individual respondent checked her station looking for her when she went to the bathroom;
• an incident when the individual respondent leaned against some boxes close to her station and stared at her for 20 minutes;
• one incident where the individual respondent told the applicant to move her car out of a no parking zone, yelling at her and threatening to have her car towed;
• one incident on August 6, 2015, where a co-worker commented that the applicant had a “body guard” because the individual respondent was standing behind her;
• another incident on August 7, 2015, when the applicant felt someone standing behind her and turned around to see the individual respondent; and
• the individual respondent is also alleged to have taken a picture of the applicant’s licence plates.

6The applicant states that the individual respondent made her very uncomfortable. She was not sure whether it was “anger, hatred or sexual”. The applicant stated in her materials that she was frightened, concerned for her safety and could not focus on work because the individual respondent was always watching and following her.

7The respondents filed a response to the Application after it was reactivated. The applicant’s allegations were investigated by the corporate respondent. The respondents deny that that the individual respondent ever followed or closely monitored the Applicant on the production floor or stared at her in any way. The respondents argue that the applicant’s allegation that she was threatened with suspension or dismissal after making her complaint to human resources is false. On August 27, 2015, the applicant was informed of the outcome of the investigation. The corporate respondent did not find a violation of the harassment policy. The applicant did not receive a suspension of any kind.

8Following the conclusion of the investigation, a grievance was filed on the applicant’s behalf. The grievance proceeded through to the third step of the grievance procedure, but was withdrawn by the union prior to being referred to arbitration.

9The parties participated in the summary hearing by teleconference on October 3, 2017. The applicant was not present; however, she appointed a representative to participate in the call.

The Summary Hearing Process

10The 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.

11The Tribunal is not empowered to remedy general allegations of unfairness in areas such as employment, services or accommodation. Unfair treatment is not discrimination unless there is proof that the personal characteristic was a factor in the treatment the applicant experienced.

12The test that is applied at a summary hearing is whether an application should be dismissed in whole or in part because there is no reasonable prospect that the applicant will be able to prove discrimination. To establish discrimination under the Code requires proof of adverse or unfair treatment which is based, in whole or in part, on a person’s race, gender, disability or other prohibited ground under the Code. In other words, the ground must somehow be a factor in the adverse treatment.

13The applicant has also alleged reprisal. In Noble v. York University, 2010 HRTO 878, at paragraph 31, the Tribunal stated:

In order to prove reprisal, [an applicant] must establish that the respondent engaged in an action, or threat, which was intended as a retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the complainant must establish that the action was taken with an intent to punish or retaliate.

14At 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. The test of no reasonable prospect of success is determined by assuming the applicant’s allegations are 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.

15Accepting 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 there is evidence that would be reasonably available to support the applicant’s belief that she has experienced discrimination and reprisal.

16The primary focus in the summary hearing is on the applicant’s submissions. 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. The Tribunal is mindful of the fact that in some cases an application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant’s case.

17There is no evidentiary or legal burden of proof assigned to either party in a summary hearing and as a result, it is not up to the applicant to demonstrate that an application has a reasonable prospect of success. Summary hearings generally occur at an early stage in the process prior to the exchange of disclosure and are determined on the basis that the applicant’s allegations are accepted as true. It is the role of the Tribunal to examine the allegations, apply its expertise, and determine whether or not an application should move ahead in the hearing process or be dismissed for no reasonable prospect of success. The applicant’s role is to explain, by referring to evidence in his or her possession or evidence that may be reasonably available to the applicant, how he or she intends to prove that there is a connection between the conduct of the respondent and the prohibited grounds cited in the application.

Decision

18I have considered the submissions of the parties and their written materials. Even accepting the applicant’s factual allegations as true, I find that there is no reasonable prospect that she will succeed under the Code. The applicant acknowledges that she can only speculate about what was motivating the alleged conduct of the individual respondent. While the applicant speculates that there may be a connection between her experiences at work and one or more prohibited grounds under the Code, she was not able to point to any evidence which would be reasonably available to her to support that connection or explain why she feels that this connection exists.

19Fundamentally the applicant is unable to provide sufficient context for her allegations to distinguish them from the kind of workplace fairness issues that are dealt within the labour relations context, as compared to issues addressed by this Tribunal under the Code.

20With respect to the applicant’s reprisal allegations, the applicant’s internal complaint did not contain facts which would lead the respondent employer to conclude that the complaint was based on a prohibited ground under the Code. As a result, there is no reasonable prospect that the applicant will be able to prove that the statement allegedly made to her – that there could be consequences for making false allegations – was an act of intentional reprisal for claiming or enforcing a right under the Code. In addition, the applicant’s allegation that she was suspended after she made a complaint to the Tribunal has no reasonable prospect of success given that the employer denies the allegation and the applicant’s representative could not provide particulars of the alleged suspension.

21For those reasons, the Application is dismissed.