Ontario Human Rights Tribunal Decisions - January 17-21, 2011

Starting today, Wise Law Blog will review each week's important decisions from the Ontario Human Rights Tribunal.

We'll break the decisions down into two categories:

1. Substantive rulings on cases of discrimination; and
2. Those touching upon strictly procedural matters

We hope all of our readers will enjoy this new series.

PROCEDURAL MATTERS

Krajisnik v. Linamar Corp.

In this case, the Tribunal deals with one discrete procedural issue: dismissal for delay.

Under the Ontario Human Rights Code, an application under Section 34 – for example, alleging discrimination in employment must be filed within one year unless there are good faith reasons for the applicant having failed to file his Application within the time limits set out in the Code, and such an extension does not cause substantial prejudice to the respondent.

The applicant, a man alleging discrimination against his employer on the ground of disability, had been terminated in 2002 by his employer who concluded that the applicant’s employment had been frustrated as a result of the applicant’s permanent and total disability. The applicant submitted that he had good faith reasons for filing his application late, specifically in 2009.

The tribunal rejected the good faith reasons put forward by the applicant.

First, the fact that he may only have learned of his rights in 2009, the year he made the application, was not a valid reason since ignorance of one’s right alone is no excuse for not filing the required time frame set in the Code. To raise this sort of defence, an applicant must also show that they had no reason to make enquiries about those rights, which he failed to establish.

On the latter point, an argument that relied on the doctrine of reasonable discoverability, the fact that applicant had received an ergonomist report in 2009 that confirmed his suspicion that one of the jobs that he had been assigned in 2001 was beyond his medical limitations did not mean that his belief that he been unfairly treated crystallized at that point. The Tribunal held that there was ample evidence in this case that the applicant came to this realization far earlier in time, and that the medical report had not helped him discover his case but rather discover the extent of evidence in support of it.

Second, the fact that the respondent employer had not been receptive to the respondents repeated refusals to provide documents for the applicant to use in WSIB proceedings were not related to the incidents of discrimination that took place during the applicant’s employment. To be specific, even if his employer was failing in its duty to accommodate him since it was assigning him work that he was medically incapable of doing, its knowing withholding of documents following termination of the Applicant could not of itself constitute a “related discriminatory act” in order to make the last incident of discrimination fall within the required time window.

As there were no valid reasons put forward by the applicant to establish "good faith", the Tribunal found it unnecessary to consider potential prejudice to the respondent that such an allowance might engender, dismissing the case for delay.

Gaetano v. HSBC Bank of Canada

In this case, the applicant filed an Application under section 34 of Code alleging discrimination on the basis of gender, age, and sexual orientation. The major procedural matter at issue was the Tribunal’s jurisdiction: could the Tribunal rule on a matter involving an employee who had been terminated by a federally regulated chartered bank.

In answering “no”, the Tribunal noted that the Ontario Human Rights Code only applies to matters that fall within provincial jurisdiction and thus it does not apply to the applicant's employment since the Constitution Act, 1867 gives the federal government exclusive power over banking. Accordingly, for this application to be considered, the applicant would have to apply to the Canadian Human Rights Commission, the body charged with applying the comparable legislation to areas of federal jurisdiction.

Sargeant v. 1425841 Ontario Ltd.

In this case, the applicant failed to attend for his scheduled hearing as indicated in the Notice of Hearing that was not returned to the Tribunal as undeliverable. Nor did the applicant attempt to contact the Tribunal. After waiting an 1 hour and 15 minutes, his application was dismissed as abandoned.

DISCRIMINATION

Popplewell v. Canadian Diabetes Association

In this case, a self-identified Black female claimed that she was subject to harassment and discrimination by her employer over a period of two years as a telephone representative, and alleged she was ultimately dismissed on the ground of race and colour contrary to sections 5 and 9 of the Code.

The applicant identified a number of incidents of differential treatment that she submitted amounted to racial discrimination as defined by the Code:

1. She was told by a supervisor to seek family counseling;

2. She was contracted at home by management in a manner that was intimidating;

3. She was suspended multiple times and received numerous written warnings.

The applicant forcefully submitted that Caucasian employees were not subject to any of these forms of treatment.

In dismissing the complainant's application, the Tribunal engaged in an extensive analysis of credibility of all witnesses concerned, finding the applicant’s testimony as a whole was unreliable and preferring the testimony of the employer and its employees. The latter testimony revealed an employee with a pattern of insubordinate behaviour, who could not handle constructive criticism and who had made threatening comments to supervisory staff members who had confronted her to do no more than address legitimate employer concerns. Unlike other witnesses, which included a number of management employees, the applicant had not taken contemporaneous notes and could not recall the details of certain incidents relied upon in support of her claims.

Also weighing against the applicant was that the many independent investigations had been undertaken into the applicant’s complaints of racial discrimination but none had revealed any such misconduct. Instead they revealed an employee with weak performance and productivity levels, who had displayed very confrontational behavior in the workplace.

On her specific reference to acts of discrimination, identified above, the Tribunal noted:

1. That it was not improper for a supervisor who observed an employee displaying a pattern of aggressive and hostile behavior to recommend family counseling;

2. That it was not unusual for an employee, like the applicant who does much of her work at home, to be contacted by her superiors to discuss work-related issues;

3. That suspensions and written warnings were justified responses to the applicant’s poor work performance and unexplained hostile behavior.

The Tribunal concluded that "race" was not a factor whatsoever in the applicant’s termination, nor had she been the subject of racial discrimination or harassment during the course of her employment with the respondent employer. The fact that the applicant had the subjective belief that acts of racial discrimination against her were occurring in the workplace was not enough to meet the test.

- Robert Tanha, Toronto

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