Wise Law Roundtable: Forced Retirement, Age Discrimination and Wrongful Dismissal

Commentaries from Wise Law's lawyers on current cases of interest 

Garry J. Wise:  Employees over the age of 60 are a perennially vulnerable sector of the Canadian workforce. 

Forcing an older employee to essentially retire through an unwarranted dismissal is now discriminatory and illegal in most circumstances.  This new legal reality, however, still hasn't fully filtered down into the cultures of many workplaces, where age discrimination remains alive and well.

The sorry truth is that for many employees aged 60 and over, the end of career is possibly nearer than they wish.

In a May 2018 ruling in Dawe v. Equitable Life Insurance Company, Mr. Justice D.J. Gordon of the Ontario Superior Court considered the enitlements of Michael Dawe, a 62 year old Senior Vice President with 37 years of service with the insurer who had been terminated without cause.  Mr. Dawe claimed it had been his intention to work until at least age 65.

He asked the Court to award him 30 months' pay in lieu of notice.  The Court not only granted this claim, but in fact, Mr. Justice Gordon indicated he would have been prepared to award Mr. Dawe 36 months, had a claim for that higher amount been asserted.

Simran Bakshi:  From the sounds of it, perhaps the pendulum may be shifting back toward employees, especially older employees, on questions of the length of notice.

What is most interesting about this decision is that the court awarded a notice period of 30 months without hesitation, going considerably beyond the usual upper ceiling in the range of 24 months of notice.

This decision in large part was based on the fact that the employee had devoted his career to working at the company, and was only a few years away from retiring at the time of his wrongful dismissal. In view of his age, retirement plans, long service, and the senior nature of his position, the Court was convinced that it would be extremely difficult for him to find comparable employment:

[33]           Mr. Dawe was 62 at the time his employment was terminated.  He had devoted his entire working career to Equitable Life and its predecessor, 37 years in total.  Mr. Dawe was a senior vice-president.  He was a member of the senior management team.  There are no similar employment opportunities.  No doubt, Mr. Dawe’s age is a significant factor.  His mitigation efforts demonstrate the lack of other opportunities.
.
[35]           Mr. Dawe had commenced the process of retirement planning, not uncommon at his age and logical given the nature and focus of the life insurance industry.  Mr. Dawe had made no decision as to when retirement would occur.  He says he was committed to working at Equitable Life until at least age 65.  Retirement, if voluntary, may have occurred sooner or later.  On the evidence, I conclude it is more likely Mr. Dawe would have worked at Equitable Life until age 65.  I would add, it was more likely he would have worked there to a later age than an earlier one.

[36]           Counsel referred to a number of cases as examples of a reasonable notice period.  Such were helpful in my review.  Mr. Dawe is at the extreme high end of each of the Bardol factors.  He should have been allowed to retire on his own terms.  With no comparable employment opportunities, in particular, I would have felt this case warranted a minimum 36 month notice period.

[37]           Mr. Dawe’s position of a 30 month notice period is more than reasonable.  I conclude he was entitled to that in this case.

This decision, if upheld by the Court of Appeal, is likely to have a significant impact on employment law cases going forward. In fact, it has already been relied upon in at least one case –Saikaily v. Akman Construction Ltd., to support an award of 24 months’ of notice, for a far more junior and short serviced employee nearing the age of retirement.

Paul Adam:  Well, this is a bold decision with some very bold language.

As Simran mentioned, the conventional wisdom has generally been that there is a “soft cap” of 24 months on notice, if the employee was at the highest levels of seniority, when four key "Bardal factors" are considered:

(a)           age of the employee;

(b)         the character or nature of the employment;

(c)           the length of service to the employer; and

(d)         the availability of similar employment, having regard to the experience, training and qualifications of the employee.

Mr. Justice Gordon in this case made it explicit that these factors were traditionally applicable to employment environments in which the longest possible tenure of an employee was assumed to be maxed out at age 65.

Then he goes on to say that assumption no longer necessarily applies:

[31]           Whether it is exceptional circumstances or recognizing a change in society’s attitude regarding retirement, the particular circumstances of the former employee must be considered.  For many years, the usual retirement age was considered to be 65.  Pension plans improved as a result of the labour movement, introducing, for example, an 80 factor for most employees in the public sector and many in large companies in the private sector.  That lead to some individuals retiring between the age of 50 and 60.  But many were not ready to fully retire.  They sought out additional employment or simply continued to work in their existing position.  Further, mandatory retirement was abolished in 2006 in Ontario to protect against age discrimination.  Many employees have continued past 65.  In result, it is important to recognize that each case is unique.  Presumptive standards no longer apply. [emphasis added]

The Court lays out two paths of legal reasoning to arrive at this conclusion- one is that this case is an exceptional departure from the “24 months” rule, the other is that the “24 months” no longer applies to senior employees because it was based on assumptions about how long we work that now belong to a bygone era.

It’s not very often that a judge will say that an established legal presumption “no longer applies.”

That being said, I think the ruling is correct. There’s lots of empirical data and anecdotal evidence that age discrimination against older employees, despite the fact that they are working even longer, has remained stubbornly pervasive or gotten worse.

Simran Bakshi: To date, Dawe has only been cited in one case, being the Saikaly decision.

What is interesting about this case is what sets it apart from the Dawe decision.

Mr. Saikaly had been the office manager of the Defendant company, a far less senior role than that of Mr. Dawe, who held the position of Senior Vice President. While Mr. Saikaly was a long term employee, having been employed for a period of twelve years, his tenure was no where close to that of Mr. Dawe’s thirty-seven years of service.

What they had in common, however, was that Mr. Saikaly and Mr.Dawe were both employees over the age of 60 at the time of their respective terminations.

In each case, the court takes note of the difficulties older employees are likely to encounter in finding a comparable position of employment following a dismissal, particularly as they approach the age of retirement.

As Justice D.J. Gordon in Dawe described it, a dismissal in such cases is tantamount to a “forced retirement”.

The Saikaly decision appears to zero in on this aspect of the Dawe decision. As Corthorn J. summarized:

28  For an individual at or over the age of 60, a notice period in excess of 30 months might be reasonable (Abrahim v. Sliwin, 2012 ONSC 6295, 2013 C.L.L.C. 210-004, at para. 25). It is not uncommon for individuals over the age of 62 and/or terminated from senior level positions to be entitled to 24 months' notice. (See: Dawe v. Equitable Life Insurance Company, 2018 ONSC 3130; and Bovin et al v. Over the Rainbow Packaging Services Inc., 2017 ONSC 1143.)

Garry Wise:  In summary, with respect to the lengthy notice awarded in Dawe, note that the proximity to retirement, the the employee's lack of desire to retire early, and the likely unavailability of comparable employment led the Court to suggest even a virtually unheard-of notice period of 36 months would have been reasonable in the circumstances.

While time will tell, this ruling could represent a judicial warning shot to employers that new rules now apply to the improper termination of older employees.  The consequences of all forms of age discrimination could become increasingly severe and expensive for employers.

Dawe is also noteworthy because the issue of entitlement to bonuses upon termination is also addressed.

The court noted that the entitlement to bonus upon severance is ultimately a contractual question, to be determined based on the agreement between the parties.

Dawe is apparently winding its way toward appeal right now.

- Wise Law Office, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

LawFact of the Day: Employment Law

Here is your daily LawFact from Wise Law for Tuesday January 24, 2017. Today we are talking about Employment Law.

A video posted by Wise Law Office (@wiselaw) on Jan 24, 2017 at 6:44am PST

Under Ontario’s Human Rights Code, where discrimination or harassment has been proven the Tribunal can award significant remedies to employees.

A Human Rights Tribunal has power to order reinstatement of employment, restitution, monetary compensation for wage loss, and damages for injury to dignity, feelings and self-respect.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

LawFact of the Day: Employment Law

Here is your daily LawFact from Wise Law for Tuesday July 19, 2016. Today we are talking about Employment Law.

A video posted by Wise Law Office (@wiselaw) on Jul 19, 2016 at 6:21am PDT

Under Ontario’s Human Rights Code, where discrimination or harassment has been proven the Tribunal can award significant remedies to employees.  

A Human Rights Tribunal has power to order reinstatement of employment, restitution, monetary compensation for wage loss, and damages  for injury to dignity, feelings and self-respect.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Just Another Reason We Need the Ontario Human Rights Code

What do you consider before waking up and going to work?

Is it whether you have an 'acceptable' Body Mass Index? Whether your wedding ring and engagement rings are on separate fingers or, whether you are wearing 3 eye shadow colours on each eyelid?

If  you work for Malaysian Airlines, a recent Business Insider report identified that these are definite concerns.

Thanks to the Ontario Human Rights Code and basic human decency, we are not obliged to worry about these things before going to work. Let us all rejoice.

- Rachel Spence, Law Clerk

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Section 46.1 of the Ontario Human Rights Code: Civil Remedies for Human Rights Claims

BY SIMRAN BAKSHI, STUDENT-AT-LAW, WISE LAW OFFICE

The enactment of section 46.1 of the Ontario Human Rights Code in June of 2008 provided for a much-awaited civil remedy for human rights claims. The expectation was that a number of human rights cases, particularly those closely related to a civil cause of action would be diverted to the courts, thereby preventing multiplicity of proceedings.

However, though the provision has now been in force for more than five years, damages have been awarded for discrimination in only one, rather recent case. Far from opening the floodgates of human rights litigation in civil proceedings, plaintiffs appear to be resorting to s.46.1 of the Code rather cautiously. A review of Ontario’s human rights system revealed that as of 2012 there had been only 19 reported cases in total which addressed human rights within a civil action, of which 14 cases specifically relied upon s.46.1 of the Code. None of these cases rendered a finding of discrimination.

Some questions…

The focus of the Court thus far appears to be on setting the parameters of civil proceedings for human rights claims. As a result of the dearth of substantive s.46.1 jurisprudence, there remain a number of questions that will require the Court’s direction going forward. This includes:

•  The status of a human rights claim if the accompanying civil cause of action is dismissed;
•  Whether the Court will award damages for discrimination if s.46.1 has not been expressly pleaded;
• How the Court will exercise its jurisdiction to award non-monetary restitution (i.e. reinstatement; systemic remedies etc.)?
• The range  and quantum of damages the Court may award for discrimination;
• Whether the limitation period for bringing human rights claims pursuant to s.46.1 will extend to two years, given that it accompanies a civil cause of action?

Some possible answers…

Civil Cause of Action as a Condition Precedent – Section 46.1(2):

Pursuant to section 46.1(2), in order to commence an action seeking compensation for discrimination, a human rights claim must be accompanied by a civil cause of action. 

While this requirement is straightforward in itself, questions emerge as to what the status of a human rights claim becomes if the underlying civil cause of action is dismissed.  Case law suggests that where a civil cause of action is struck down prior to trial, the accompanying human rights claim cannot survive on its own. 

What is interesting however is that if a human rights application is commenced at the Tribunal prior to any decisions being rendered on a motion to dismiss a civil claim (recall that this may often occur as the limitation period for bringing an application pursuant to the Code is only one year), the application may be barred pursuant to s. 34(11) of the Code. 

As a result, an individual may be left with no remedy for an alleged human rights violation purely on procedural grounds. In the case of Aba-Alkhail v University of Ottawa, 2012 HRTO 656, which presented with similar circumstances, the Tribunal held as follows:

[29] With respect to the applicant’s argument that he would be left with no human rights redress if both the civil suit and the Application are dismissed, I note that the Divisional Court recently emphasized that even in those circumstances section 34(11) is not discretionary and bars an application from proceeding: Grogan v. Toronto District School Board, 2012 ONSC 319. The Tribunal does not have jurisdiction and, to paraphrase the Divisional Court, it does not matter that the civil action could be withdrawn or dismissed. “In short, s.34(11) requires an applicant to choose between the Tribunal and a (concurrent) civil action”: see para. 48…

There has yet to be a case in which damages have been awarded for a human rights claim, notwithstanding that the accompanying civil cause of action has been dismissed at trial. Presumably, given the framing of s.46.1, a human rights claim can still succeed as a separate cause of action. The Court affirms this position (although somewhat in obiter) in the case of Mykki Cavic v Costco WholesaleCanada Limited, 2012 ONSC 5307:

[47] The defendant has argued that in the event that I dismiss the plaintiff's claim for wrongful dismissal, I need not determine the issue of breach of the Human Rights Code. It is the position of the plaintiff that this is part of the claim and must be determined. I treat this claim as separate from the wrongful dismissal claim and will deal with the issue below.

Pleading the Code:

In Beaver v. Dr. Hans Epp Dentistry Profes sional Corporation, the Tribunal affirmed that a human rights application will be barred pursuant to s.34 (11) of the Code where “the facts andissues in a court action are the same as those in the application." What this means in practice is that an application can be barred even if a Code violation has not been expressly plead in the Statement of Claim. While the Tribunal’s position is well established, it remains to be seen if the Court will award damages for discrimination if section 46.1 of the Code has not been expressly plead. Presumably, given the Tribunal’s position, it would follow that a Plaintiff should similarly be entitled to compensation for discrimination so long as the pleading makes reference to human rights obligations and/or the Code.

 

Some Guidance – Wilson v Solis Mexican Foods

Human rights damages were awarded by the Ontario Superior Court for the very first time in the recent case of Wilson v Solis Mexican Foods Inc, 2013 ONSC 5799.

The Plaintiff in this case was a Certified General Accountant employed by the Defendant for almost a year and a half. Within a year of commencing her employment, she suffered a back ailment which eventually led to her taking leave from her position. Shortly thereafter, she was informed by the Defendant that her employment was being terminated as a result of the business being restructured.

The Plaintiff brought a claim for wrongful dismissal and further alleged the termination of her employment to have been discriminatory. Given her rather short-lived employment with the Defendant, she was awarded 3 months’ reasonable notice. The Court went on to find that the Plaintiff’s disability had been a factor leading to the decision to terminate her employment. In deciding the quantum of damages to be awarded for said discrimination, the following factors:

[90] First in this case, the plaintiff lost “the right to be free from discrimination” and experienced “victimization”. Second, the defendant’s breach of the statute is serious. The defendant orchestrated the dismissal and was disingenuous at various times both before and during termination.

As a result, the Court held the appropriate award to be $20,000 pursuant to s.46.1 (1) of the Code.

- Simran Bakshi, Student-at-Law, Toronto

Ontario Human Rights Tribunal Digest - December 1, 2011-January 1, 2012

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

RULINGS ON DISCRIMINATION

Rampersaud v. Primary Response Inc. et al. 

In this case, the Applicant, a self-identified Black male of East Indian descent who was employed as a security guard, alleged discrimination against the Respondent security company on the basis of race, colour, place of origin, ethnic origin, disability and age, contrary to sections 5(1), 5(2) and 9 of the Code. The Respondent stated that the Applicant had been terminated after he was involved in an egregious incident at the assigned work site involving the exchange of unauthorized parking passes to cafeteria staff in return for  free beverages from them.

Employment Standards had determined that the Applicant was not entitled to termination pay since he had been guilty of wilful misconduct. Nevertheless, the Tribunal refused to dismiss the Application on the basis that the substance of the Application had been dealt with in another proceeding since none of the Code-related allegations in the Application were addressed in the ESA proceeding.

The Applicant cited the several incidents of discrimination against the Respondent, for which he sought substantial monetary compensation:

1.  After his return from a medical leave, the Applicant claimed  that a specific Respondent employee, Ms. Oza, an employee who he believed had supervisory authority over him, tried to have him demoted. The Tribunal rejected this allegation on the basis that it was based on hearsay information and that the Applicant had not identified the informant nor how he or she would have known this information.
2. The Applicant claimed that he was subject to discriminatory comments on the basis of his ethnic background, namely that he was called "Son of Slave" by Ms. Oza in the presence of other employees, a derogatory and demeaning term about the Applicant's ethnic group. With respect to this allegation, the Tribunal held in favour of the Respondents, noting that the Applicant had not mentioned this allegation in his Application and that sufficient particulars of the allegation had not been put into evidence. What language was the remark made in?  What was the context of the statement?
3. The Applicant claimed he was improperly excluded from radio communications during the course of his shifts because of his race, but was not aware whether other security guards were being treated in a similar way. The Respondents claimed that this did not occur, or if it did, any denial of access was not done purposely and was as the result of faulty radios. The Tribunal accepted the Respondents' version of events, noting that even if he had been improperly excluded somehow from radio communication there was not evidence that this was done for reasons related to Code grounds.
4. The Applicant claimed he was improperly denied computer access by the Respondents on the basis of Code Grounds. Again, here, the Tribunal sided with the Respondents, finding that the Applicant was only denied access to specific terminals for logistical reasons and that any improper denials were not linked to Code grounds in any event.
5. The Applicant claimed he was falsely accused and verbally disciplined for giving false evidence to the media by the Respondents with respect to a security incident that had occurred in October 2008. The Tribunal rejected the Applicant's allegation here too, preferring the Respondents' evidence that the Applicant had been disciplined for violating company policy in not waiting  for the police and ambulance before attending at the scene.

With respect to the Applicant's position that he had been erroneously and falsely accused by the Respondents of giving free parking passes to cafeteria staff in violation of company policy on the basis of his ethnicity and race, in purported justification of his termination, the Tribunal concluded on all the evidence that the termination, while maybe not entirely fair, was not discriminatory:

In my view, the Respondents have established a reasonable non-discriminatory explanation for the termination of the Applicant's employment.

PROCEDURAL RULINGS 

Romero v. Mennonnite Brethren Senior Citizens Home et al. 

In this case, the Applicant filed an application alleging discrimination and harassment in employment contrary to the Ontario Human Rights Code. The Tribunal issued a Notice of Confirmation of Hearing to the parties, requesting that they comply with their disclosure obligations under Rule 16.1 of the Tribunal's Rules of Procedure.

Rule 16.1 states:

Not later than 21 days after the Tribunal sends a Confirmation of Hearing to the parties, each party must deliver to every other party (and file a Statement of Delivery): 
a) a list of all arguably relevant documents in their possession. Where a privilege is claimed over any document the party must describe the nature of the document and the reason for making the claim; and, 
b) a copy of each document contained on the list, excluding any documents for which privilege is claimed. 

The Respondents did not comply and the Applicant sought an Order compelling produce of documents from the Respondents. The Tribunal ordered the Respondents to comply with the requirement under Rule 16.1 within one week.

Vallee v. Fairweather Ltd.

In this case, the Applicant filed an application alleging discrimination against the Respondent. The Respondent had continued to fail to file a response in spite of rulings and notices by the Tribunal that it do so in accordance with the Rules of Procedure.

Rule 5.5 of the Tribunal's Rules of Procedure provides:

Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:  a) deem the Respondent  to have accepted all of the allegations in the Application; b) proceed to deal with the Application without further notice to the Respondent; c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding; d) decide the matter based only on the material before the Tribunal. 

In accordance with Rule 5.5, the Tribunal held as follows:

. . . the Respondent is deemed to have waived all rights with respect to further notice or participation in the proceeding. The Tribunal will proceed without the participation of the Respondent. The Respondent is deemed to have waived its right to participate pursuant to Rule 5.5(c) and to have accepted all of the allegations set out in the Application pursuant to Rule 5.5(a). 

...........

If you believe you have experienced discrimination,  contact a lawyer who can advise as to your rights and entitlements under the Ontario Human Rights Code and other relevant legislation.

- Robert Tanha, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Ontario Human Rights Tribunal Digest - April 1-30, 2011

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

SUBSTANTIVE RULINGS

Kerry Pinkney v. Datex Billing Services

In this case, the applicant alleged discrimination on the basis of sex in employment, contrary to the Ontario Human Rights Code. The applicant also claimed that she had been subjected to sexual harassment, sexual solicitation and reprisal. Specifically, the applicant alleged that she was terminated because she refused to have sex with the immediate supervisor of the respondent employer and that he, throughout the course of her employment with the respondent employer, continually badgered her to have sex with him.

The applicant identified the following incidents of sexual harassment:

1. The supervisor would regularly approach her while she was in the office, making unwelcome sexual advances towards her;
2. On one specific occasion, he threw himself at her and groped her;
3. He continued such misconduct even after the applicant emailed him asking that he discontinue such behaviour.

The respondent employer, in its evidence, claimed that the applicant had been terminated for cause. It pointed to the applicant's use of the company phone for personal business, among other things. According to the respondent, the applicant had had a close personal and social relationship with the supervisor and his wife, and that none of the conduct towards her had been unwelcome. In fact, the employer alleged that the applicant had been a willing participant and had often initiated the flirting with her supervisor, who denied that he had received an email from the applicant at any time indicating that his conduct had been unwelcome and asking for it to stop.

As is often the case in cases of sexual harassment, there were no witnesses to the alleged incidents of sexual harassment. Nonetheless, the Tribunal concluded that no sexual harassment or breach of the Code had occurred in the case, noting the following in support of its position:

1. The applicant had continued to socialize with the supervisor, including attending at their hot tub parties and going into a hot tub with him, even though according to her, he was continuing to make unwelcome sexual advances towards her;
2. If the applicant was trying to fend off repeated sexual advances from her supervisor, why had she voluntarily given him a massage at work when they were alone together in the office?;
3. The applicant had willingly sent her supervisor provocative pictures with titles that were somewhat suggestive;
4. If the applicant was being continually sexually propositioned, why had she not confided in the supervisor's wife, a woman with whom she was very close; and
5. The apparent email sent to the supervisor, objecting to his alleged sexual harassment, was riddled with irregularities, which could not easily be explained away.

With respect to the reasons for termination and the applicant's reprisal claim in that regard, the Tribunal accepted the respondent's position that the applicant had been dismissed for insubordination and for making personal phone calls. The fact that the supervisor might have overreacted, in taking the decision to fire the applicant, did not amount to "discrimination" as defined by Code.

PROCEDURAL RULINGS

Smith v. Meineke Car Care Centre and Michael Colacci

In this case, the applicant alleged discrimination under the Code. The mediation stage had been reached in the matter, and a Notice of Mediation had been sent to both the applicant and the respondent parties; neither had been returned as undeliverable. On the scheduled date of mediation, the applicant failed to attend and did not communicate with the Tribunal to explain its failure in this regard.

The Tribunal wrote to the applicant asking that he advise within ten days of his intentions with respect to the Application. Having received no response within the requisite time period, the applicant was deemed to have abandoned the Application and the Application was dismissed.

Jerry Smith v. Prodomax Automation Inc.

In this case, the applicant alleged discrimination in employment due to age contrary to the Code. The hearing stage had been reached, with a start time of 1:30 p.m for a summary hearing by way of conference call. In accordance with its usual practice, the Tribunal waited until 1:50 p.m. before proceeding with the hearing. At as that time, the applicant, who had been given notice of the summary hearing by conference call, was still not present for the call.

Rule 3.13 of the Tribunal's Rules of Procedure states that the Tribunal may proceed with the hearing, if a party has been notified, in the party's absence and to take any action that it deems appropriate.

In dismissing the applicant's case as abandoned for non-attendance, the Tribunal explained the justification behind this specific procedural rule:

The applicant did not attend at the hearing although notified of the hearing. The respondent incurred the costs of attending at the hearing. The Tribunal also set aside the time and resources for the hearing, which are precious given the caseload of the Tribunal and the expense required to facilitate these hearings.

Abdul v. Inside Out Toronto

In this case, the applicant alleged discrimination in the area of services, goods and facilities on the basis of race and place of origin. Specifically, the applicant believed she had been discriminated in her communications with the executive director of the respondent employer when she tried to adduce information and make inquiries about the mentorship workshops offered by it to members of the public in 2009. She says that despite her numerous inquiries, she was never informed of the dates, times, and location of the workshops. The executed director's stated lack of knowledge, the applicant says was a ruse for the organization's and director's deep-seeded racism.

The discrete procedural issue before the Tribunal, was whether the claim was time-barred for reason that the last incident of discrimination in the applicant's Application occurred more than one year before the application was filed, in 2009.

Section 34 of the Code provides as follows:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(c) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith

The applicant, in her verbal submissions before the Tribunal, argued that the last incident of discrimination actually occurred in 2011, when the applicant had communicated with the Director for the sole purpose of restating her concerns about the discrimination she believed he and his organization had subjected her to.

In finding that the one-year limitation period had been violated, the Tribunal stated:

The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay. . . The mandatory one-year limitation period is consistent with the Code's objective that human rights claims should be dealt with fairly and expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they seek to pursue a human rights claim.

I reject the applicant's contention that the alleged discrimination she experienced in 2009 continued until, or reoccurred in, 2011 simply because she attempted to recommunicate her concerns at that time. To allow an applicant to revive an out of time claim by simply restating old concerns would under the purpose of section 34 of the Code.

- Robert Tanha , Toronto

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Wise Law Blog: Ontario Human Rights Tribunal Digest - March 18-31, 2011

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

SUBSTANTIVE RULINGS

Bianca v. Maritime Travel and Karn Nichols

In this case, the applicant alleged discrimination on the basis of disability in employment, contrary to the Ontario Human Rights Code. More specifically, the applicant alleged that she took a medically approved sick leave due to a disability, and that the respondents were aware of her medical condition. When she advised her respondent employer she was ready to return to her job, she was refused, even after offering to come back part-time or as a floater. She subsequently learned that someone new had been hired by her company to fill her role.

The respondent, in its evidence, alleged that the applicant's termination was due to a slowdown in business and had nothing whatsoever to do with her disability. What is more, it stated that the applicant was a temporary employee, not a permanent employee, and that its decision to hire a new staff member was made after the decision to terminate the applicant had already been taken. Furthermore, this new staff member was hired to work very minimal hours and the applicant in the past had indicated to the respondent that these hours would not be enough to sustain her.

The Tribunal preferred the evidence of the respondent to that of the applicant:

I prefer the evidence of Ms. Buchanan and Ms. Nichols that they hired an individual in December 2008, on a vary casual or temporary basis, after the applicant's employment was terminated. I find that their evidence was consistent with each other. . .

The Tribunal found that market conditions, not the applicant's disability, had caused the employer to decide to terminate the applicant's employment; it just happened to coincide with the time she was suppose to return to work. As well, the Tribunal found that the applicant's employment was of a temporary nature. It stated:

I find that the decision to terminate the applicant's employment was related to market conditions and a lack of business at the Hazelton Lanes branch, and the applicant's disability was not a factor in the decision to terminate her employment. The applicant did not dispute that her workplace was not busy. In addition, the applicant agreed in cross examination that, when she went on leave, the respondents did not have any work for her beyond September 22, 2008.

Of note, the Tribunal stated that disability, as is the case with any of the prohibited grounds contained in the Code, only has to a factor in the decision to terminate; it does not have to be the sole reason.

PROCEDURAL RULINGS

Leong v. Dufferin and Lawrence Dental Office

In this case, the applicant alleged discrimination in services against a dentist on the basis of race, colour, ancestry, place of origin, ethnic origin, disability, creed, sex, marital status and reprisal or threat of reprisal. The dentist had refused to provide an extraction at the applicant's scheduled appointment for no apparent reason, which she alleged had been done due to her personal characteristics. Beyond this, the applicant provide no further information beyond stating that she felt this treatment was grossly unfair.

The Tribunal issued a Notice of Intent to Dismiss on the basis that the applicant had failed to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent, requesting information on the aforementioned. The applicant failed to reply.

In dismissing the application, the Tribunal aptly noted:

The Tribunal's jurisdiction is based on the Code, which prohibits discrimination in the areas of accommodation, services, goods and facilities, employment, contracts and membership in vocational associations, on the basis of grounds listed in the Code. Neither the Application nor the applicant's submissions suggest a connection between the applicant's allegations and any of the grounds identified in the Code. The Tribunal does not have a general power to inquire into claims of unfairness or wrongdoing outside those areas or grounds

Mitchell v. Associate Tube Inc.

In this case, the applicant alleged discrimination with respect to employment on the basis of record of offences and reprisal. The applicant stated that he had been mistreated by his employer, but did not connect this alleged mistreatment to a Code-protected ground or to an attempt on his part to claim and enforce his Code rights.

In its reasons, the Tribunal fleshed out the extent to which it may inquire into claims of unfairness:

The Tribunal does not have a general power to inquire into claims of unfairness outside the grounds listed in the Code. The applicant has not identified any ground of discrimination or basis upon which he alleges that the Code was violated. I find that the Application does not raise matters which the Tribunal has the power to decide.

Unfairness, in other words, may be cognizable by the Ontario Human Rights Code but only where it relates to a Code-protected ground.

Madore v. Sears Canada

In this case, the applicant alleged discrimination in employment because of sexual solicitation or advances, relying on bald assertions of such treatment at the hands of his employer. Section 7(3)(a) of the Ontario Human Rights Code provides:

(3) Every person has a right to be free from,

(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome

Because the applicant had not responded to the Notice of Intent to Dismiss, which had been sent to the applicant requesting information about how he experienced unwelcome sexual solicitation or advance within the meaning of the Code provision, the Tribunal dismissed the application as abandoned.

- Robert Tanha, Toronto

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Ontario Human Rights Tribunal Digest- March 3-March 18, 2011

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

SUBSTANTIVE RULINGS

Liu v. Country Herbs and Garry Proven

In this case, the applicant, a farm worker, alleged she had experienced discrimination in the workplace due to race, colour, place or origin, ancestry, marital status and disability, contrary to the Ontario Human Rights Code.

Specifically, the applicant alleged that she was the only visible minority and single parent worker and was being picked on as a result; that she was physically the weakest worker yet made to perform the hardest physical tasks; that she was made to do work without proper health protection; and, finally, that she was laid off while other workers were retained based on her personal characteristics. Beyond this, the applicant provided very little support for her allegations of discrimination.

The Tribunal unequivocally rejected all of the applicant's allegations of discrimination. It found as follows:

1. The Tribunal found that the applicant was not the only minority worker, there were many other racialized employees who worked for the respondent employer.
2. The applicant was not the only sole support parent worker; a number of sole support parents had worked for the company over the years.
3. The applicant failed to provide evidence that the work she performed was anymore physically demanding than the work performed by other staff. In fact, the Tribunal found that the time sheets indicated that work was evenly distributed amongst the respondent workers, including the applicant.
4. The Tribunal noted that investigations conducted by the Ministry of Labour and the Workplace and Safety and Insurance Board found that the respondent employer was maintaining a safe environment in accordance with applicable law.
5. The lay-off of the applicant was based on seniority: the fact that the applicant had been treated differently than others and felt this was unfair did not amount to "discrimination" on the basis of any Code-protected ground.

PROCEDURAL RULINGS

Cray v. Rouge Valley Health System

In this case, the Tribunal requested that the Applicant provide an update within thirty days as to the status of a grievance proceeding, which had resulted in a deferral of the applicant's discrimination claim before the Tribunal. Because the applicant did not respond to the Tribunal's request, the applicant was deemed to have abandoned the Application and the Application was dismissed.

(See the case below for more discussion of the topic of deferral of applications alleging discrimination before the Tribunal.)

Kiss v. ED Industries Ltd.

In this case, the Tribunal considered whether to defer an application alleging discrimination in employment on the basis of disability. The applicant had previously filed a claim with the Workplace Safety and Insurance Board that had yet to be disposed of.

In deciding whether to order a deferral of the proceeding before it, the Tribunal noted:

The Tribunal may defer consideration of an application, on such terms as it may determine and on its own initiative (Rule 14.1) The Tribunal has stated that deferral is not automatically invoked simply because the parties involved are in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

The application was deferred, since before the discrimination claim on the basis of disability could be resolved, a finding by the Workplace and Insurance Board was required on whether the exposure to mould at the respondent employer's workplace had caused the applicant to suffer an occupational illness. The Tribunal held that only after WSIB had made this finding (which was within its expertise) could it adjudicate on whether the employer had failed to accommodate this illness.

Thompson v. Gemma Communications

In this case, the applicant alleged discrimination on a number of grounds including gender and ¨record of sex-related offences.¨

The Tribunal ruled that the only the claim on the basis of gender could proceed. For all the other claims, the applicant had not referred to any specific incidents of discrimination but had only made bald assertions.¨

On the question of when preliminary dismissal is appropriate, the Tribunal stated:

An application will only be dismissed at a preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. This has been established by the Tribunal’s jurisprudence. See Masood v. Bruce Power, 2008 HRTO 381 (CanLII), 2008 HRTO 381 (CanLII); Morin v. Alliance de la function publique du Canada, 2008 HRTO 58 (CanLII), 2008 HRTO 58 (CanLII); Hotte v. Ontario (Finance), 2008 HRTO 63 (CanLII), 2008 HRTO 63 (CanLII).

Having reviewed the Application I am of the view that the applicant has failed to identify an act of discrimination related to the ground of “record of offences” which is defined in the Code as a conviction for an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or an offence in respect to any provincial enactment.

- Robert Tanha, Toronto

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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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