Monday, January 30, 2012

Ontario Human Rights Tribunal Digest: January 2012

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


Charlotte Vallee v. Fairweather Inc.

The Applicant, a 57-year old woman, filed an Application alleging discrimination in employment based on disability and age. Ms. Vallee alleged that these prohibited grounds were factors in the Fairweather's decision to eliminate her position as district sales manager. The Respondent failed to file a Response.

The Applicant cited several incidents of discrimination  for which she sought substantial monetary compensation:
  1. When the Applicant advised her supervisor that she required a period of medical leave, he commented that she had had a negative attitude in the past; 
  2. When the Applicant was on disability leave, the Applicant's supervisor communicated to staff a message to hire only "dumb, young, and good looking employees"; 
  3. When the Applicant returned following her period of disability (one-year), the Applicant's supervisor stated she had felt abandoned by the Applicant; and 
  4. The Respondent offered the Applicant alternative employment, as an outlet store manager, a position she argued did not match her success, skills and experience. 
The Tribunal had to rule based only on the Applicant's materials, as it did not have the benefit of responding materials and did not have the opportunity to question the respondent's witnesses in regards to the elimination of the Applicant's position.

The Tribunal proceeded to consider all the evidence, finding that widespread layoffs of employees, including the Applicant, and the fact that the Respondent had not replaced her, indicated a non-discriminatory basis for the elimination of the Applicant's job. However, the Tribunal found that other circumstances demonstrated that age and disability were factors in the Respondent's decision to eliminate the Applicant's position, holding as follows:
...other circumstances, including the "dumb, young, and good looking" hiring message and the supervisor's comments analogizing a medical leave to abandonment, suggest that the respondent took issue with the applicant's disability and age. I note also that, while the applicant was laid off, the respondent did not eliminate all district sales manager positions. 
Accordingly, the Applicant was able to satisfy her onus to prove, on a balance of probabilities, that she had been subjected to discrimination in employment.

Of note, the Tribunal held that, even though the Applicant could not demonstrate that the "dumb, young, and good looking" hiring practice was directly applied to her, that did not prevent it from inferring that it had informed the respondent's staffing practices and that it was a factor in the respondent's decision to lay her off in all the circumstances.

The Tribunal requested further written submissions on the question of damages, and did not rule on the appropriate remedies at this juncture.

Fedda v. Tony Graham Motors

The Applicant, an apprentice mechanic, alleged discrimination by his employer on the basis of disability. The Applicant was involved in a car accident and was off work for several months. He suffered injuries to his eyes, lower back and neck.

Upon his return, he was placed on modified duties, including performing oil changes, checking tire pressure and lubricating door locks and hinges. Four months into his modified duties, the Applicant sent his supervisor an email stating that he wished to achieve his goal of becoming a full-licensed auto mechanic and would work hard to achieve that goal despite his physical limitations. The Respondent responded that he would not be moving into the shop to work on cars for the "forseeable future" and directed him to focus on taking care of his health. The Applicant took this to mean that his future prospects with the company were limited. Three weeks later, the Applicant was accused of stealing and terminated. The Applicant argued that this termination was a reprisal for his email and relied on the timing of events.

The Respondent took the position that it had terminated the Applicant for theft. The Applicant stated that he had not stolen, but that he had in his new role of Team Captain committed mistakes in record keeping (due to lack of proper training) which gave the impression of impropriety and that the Respondent was simply the charge as a pretext be rid of him in light of the email.

The Tribunal held that the timing of events was not enough to prove discrimination:
The applicant relies entirely on the timing of events.  He states, as set out above, that roughly three weeks after he wrote the email above he was accused of stealing.  The Applicant does not deny he made and that there was a real issue but states that the respondent used the accusation as a pretext to be rid of him in light of the email. However, the applicant also stated that in sending the email he was not asking the employer to do anything and was not suggesting any changes to the status quo. Further, he agreed that there was no new information in it - the employer had been aware of his limitations since his return in June. 
The Tribunal agreed with the Applicant that perhaps the termination was not fair in the circumstances, but went on to hold that it does not have jurisdiction to deal with complaints of "unfairness":
The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an application, an applicant must be able to prove, on a balance of probabilities, a link between a respondent's alleged actions and a Code ground. 
Blake Shearer v. The Royal Canadian Legion

The Applicant, a bar steward,  alleged discrimination against the Respondent employer on the basis of disability. The Applicant had a acrimonious relationship with her superior which led to him taking a four-day, doctor approved, sick leave. The note from the doctor authorized a four to five day leave for "medical reasons".  Upon on his return to work, the Applicant was terminated. Prior to the taking of this sick leave, the Applicant had not advised the Respondent of any medical health issues. The Applicantalleged that he had been terminated because of his disability that had required him to take the sick leave.

The Respondent alleged that the Applicant was terminated for economic reasons and that it did not know that the Applicant had a disability.

The Tribunal held that the Applicant had not met the required standard to prove she had a "disability" which required accommodation by the employer:
It is not clear from the Application or the testimony of the applicant whether he had a disability. The medical information is not specific and simply refers to "medical reasons". The applicant self-reports that he was stressed. The applicant provided no evidence, medical or otherwise, to indicate that he had a chronic condition or ongoing disability. The Tribunal has held that, in general, temporary illnesses are not considered to be disabilities under the Code.
Further, the Tribunal held that the evidence showed that the decision to termination the Applicant had been made before the Applicant's commencement of his sick leave and notification that he was having health issues.

Shahenaz Alibhai v. Aditya Birla Minacs Worldwide Inc. 

In this case, the Applicant alleged age discrimination by the Respondent after not being hired as an advisor. She relied on the bald assertion that the Respondent only hires young advisors.

The Tribunal held that that fact, if true, was insufficient to support the conclusion that the applicant's right to be free of discrimination on the basis of age was infringed by the Respondent. The Tribunal noted that there was no allegations of age discrimination in the Applicant's Application that required a response from the Respondent.

Lorne Pardy v. John Graham

In this case, the Applicant alleged discrimination in employment on the basis of sexual orientation. The Respondent had used the word "faggot" in a conversation with the Applicant about an event that had been catered the night before, in referring to a meal that had been prepared by the Applicant and was the subject of a complaint by the person who had ordered it.

The Applicant argued that the Respondent's comment was a direct attack against him because the Applicant knew he was a gay man and knew that the Respondent had impugned other vulnerable groups in the past.

The Respondent claimed that the remark was just an unfortunate choice of words spoken in anger at the spur of the moment.

The Tribunal held that given the Respondent's previous behaviour in disparaging other vulnerable groups, it was fair for the Applicant to have viewed the Respondent's remark as a confirmation that the Respondent also disliked gay males for reason on the basis of their sexual orientation. The Tribunal found that this was enough to have poisoned the Applicant's work environment:
I find that the respondent was directing his comments at the applicant, with whom he appeared to still be angry. Whether or not he intended the word "faggot" to be a direct slight to the applicant, or was just an unfortunate choice of words spoken in anger, it had the effect of confirming the applicant's fears about the respondent's feelings about him as a gay man. Having poisoned the applicant's work environment, I find that the respondent discriminated against the applicant in employment on the basis of sexual orientation. 
Mr. Pardy was awarded damages of $5,000.00.


Cottle v. Toronto Police Service

 In this case, the Applicant alleged discrimination in employment on the basis of disability. The complaint focused on an alleged incident of discrimination when the applicant was told that she would not be reclassified to the position of Detective Constable due to her medical restrictions. The Application was filed July 15, 2011 even though the alleged incident occurred on June 16, 2004.

The Applicant argued that the delay was incurred in good faith; she had made numerous attempts to have the matter resolved internally through the organization's chain of command and was now bringing a legal proceeding as she had exhausted all the internal processes of the Respondent's without receiving appropriate redress.

The Tribunal held that this was not a valid justification for the delay:
It is apparent that the reason for the delay in filing the Application was because the applicant wanted to see if her issues could be resolved through the respondent's internal processes. 
Nothing prevented the applicant from filing a timely Application under the Code while she pursued her complaint internally.  
The fact that a person is pursuing other avenues is not generally accepted as a valid or good faith reason for delay in filing an application.
- Robert Tanha, Toronto
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