Ontario Human Rights Tribunal Digest - February 12-March 2, 2011

Each week, Wise Law Blog reviews important decisions from the Ontario Human Rights Tribunal.

SUBSTANTIVE RULINGS

Misir v. International Clothiers Ltd.

In this case, the applicant, a store manager, alleged that she had experienced discrimination in the work place due to disability, contrary to the Code. Specifically, the applicant alleged that the respondent employer had not accommodated her work-related back injury even though it had given her modified duties - the applicant was given a part-time sales job which would permit her to seat in a chair during her scheduled shifts. The applicant identified the following incidents of discrimination:

1. Sitting idle in the chair she had been assigned, instead of performing assigned work task;
2. Being given a disciplinary letter for leaving the store suddenly to attend at her doctor's office due to pain; and
3. Being unable on a single occasion to take a break after having worked two hours, as prescribed by her doctor

With respect to the first allegation, the court stated that the respondent employer had every right to criticize the applicant because she was suppose to use the chair to perform work tasks, not as a resting station.

With respect to the second allegation, the court did not accept the applicant's evidence that she had experienced severe pain requiring her to immediately leave her work place to attend at her doctor's office, but that, instead, she had left work to attend at a scheduled medical appointment for which she should have gotten prior approval.

With respect to the third allegation, the court accepted the applicant's evidence that on a single occasion she could not take a break as prescribed by her doctor, but that this without more did not amount to a failure to accommodate on the part of the employer or to discrimination as defined under the Code.

PROCEDURAL RULINGS

Ruangsakulrach v. Servisair Co. Ltd. and Ken Won

In this case, the applicant filed an application alleging discrimination while being trained as a new ground service agent at the Pearson International Airport. The Ontario Human Rights Tribunal issued a Notice of Intent to Dismiss to the Applicant, on the basis that the matter appeared to be outside of the Tribunal's jurisdiction, giving the applicant a month to provide written submissions addressing the issue of jurisdiction.

The applicant did not provide a response and his application was dismissed. Of note, the Tribunal emphasized that it would have likely held that the Application was outside of its jurisdiction in any event given that the corporate respondent was clearly a federally regulated business that falls within federal jurisdiction, As noted by the Tribunal, the Ontario Human Rights Code only applies to matters falling within provincial jurisdiction. In finding that the Application exceeded the Tribunal's jurisdiction, the Tribunal underlined that federal jurisdiction over aeronautics extends to the employment of aircrew, perons who servie and refuel aircraft, baggage handlers and persons engaged in pre-board passenger screening.

Blyderveen v. Preferred Credit Resource Limited

In this case, the applicant filed an Application under section 34 of the Code alleging reprisal with respect to services, goods and facilities and contracts. A Notice of Incomplete Application and a Notice of Intent to Dismiss was issued to the applicant because the applicant's narrative failed to identify a code protected ground, such as disability, and failed to identify any specifc acts of discrimination or reprisal within the meaning of the Code allegedly committed by the respondent in relation to a Code-protected ground.

In fact, all the applicant pointed to in his Application was unfair treatment that he had been subjected to by the respondent collection agency. Specifically, he alleged he was being targeted for repayment because the agency had become aware that he has some assets from which they can recover the debt. The Tribunal underscored that mistreatment, without occurring in relation to a Code-protected ground or as a result of an attempt on his part to claim and enforce his Code rights, falls outside of the Tribunal's jurisdiction.

The Tribunal provided the applicant an opportunity to give written submissions addressing this issue, which he did not take. The Tribunal poignantly stated:

An application will be dismissed at a preliminary stage, before it is served on respondents, if it is "plain and obvious" on the fact of the application that it does not fall within the Tribunal's jurisdiction. Based on the Application and the applicant's materials, I am satisfied that the applicant's allegations do not relate to a Code-protected ground and do not raise concerns with respect to reprisal.

Fakira v. London Roof Truss Inc.

In this case, the applicant filed an Application under Section 45.9(7) of Part IV of the Code, alleging breach of a term of a settlement agreement by the respondent, London Roof Truss Inc. Specifically, the respondent employer had not paid the applicant an agreed upon lump sum. The respondent, in response, claimed that the applicant had breached a term of the settlement agreement, namely the confidentiality clause, and therefore, it was no longer obliged by said agreement to pay the money.

Section 45.9(3) and (8), the relevant sections of the Code upon reach the applicant sought to rely, read as follow:

(3) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order under subsection (8),

(a) within six months after the contravention to which the application relates; or

(b) if there was a series of contraventions, within six months after the last contravention in the series.

(8) If, on an application under subsection (3), the Tribunal determines that a party has contravened the settlement, the Tribunal may make any order that it considers appropriate to remedy the
contravention.

The respondent, relying on the witness statement and the testimonial evidence of one of its employees, alleged that the applicant had told one of its employees (shortly following the mediation from which the settlement agreement had resulted) that he had not received "even half the money he was expecting", in breach of the settlement agreement. The Tribunal found the respondent's witness's evidence unreliable regarding the alleged confidentiality breach . The respondent, therefore, was found to be in breach of said agreement and ordered to pay the Applicant the outstanding lump sum payment forthwith.

Morris v. Bemac Autobody Ltd.

In this case, an applicant made an Application against his employer alleging discrimination. However, subsequent to the scheduling of the hearing by the Tribunal, the applicant failed to discharge its pre-hearing obligations under the Tribunal's Rules of Procedure; for example, he did not produce copies of all documents that he was intending on relying on at the hearing. As a result, the Tribunal, at the request of the respondent, ordered that the applicant advise if he was intending on attending at the scheduled hearing, and, if so, to comply with its pre-hearing disclosure obligations under the Rules.

- Robert Tanha, Toronto

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