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 - May 1 - May 30, 2011

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

SUBSTANTIVE RULINGS

Heather Knibbs v. Brant Artillery Gunners Club In. et al. and Stephanie Long v. Brant Artillery Gunners Club Inc. et al.

In this epic Application, Heather Knibbs and Barbara Long, two bartenders working for a gun club, alleged that they had been discriminated against by the Respondent employer, contrary to the Ontario Human Rights Code.

Heather Knibbs alleged that she had been discriminated against on the basis of disability and that the Respondents had reprised against her for asserting her rights under the Code, and for commencing a human rights proceeding.

More specifically, Ms. Knibbs identified the following specific acts, which she alleged constituted discrimination on the basis of disability or reprisal:

1. While she was on a medical leave recommended by her doctor (because of problems with depression, diabetes, and cholesterol, partly brought on because of her father's death), she was demoted from full-time to part-time;
2. During her medical leave, the Respondents published confidential medical information (revealing her health problems) about her in the workplace, exacerbating her depression;
3. The Respondents sent her a letter stating that she could not return to work until she was fully recovered and symptom-free;
4. After she sent a letter from her legal counsel advising the Respondents that they were in breach of the Code, the Respondents retaliated by falsely accusing her of misconduct, including theft of money and misbehaviour pre-leave that had resulted in five complaints being launched against her apparently by fellow staff members;
5. The Respondents sent a letter to the police in connection with the missing money, falsely suggesting that the Applicant was involved, and maligning her character; and
6. She was laid off while on a bona fide medical leave.

Barbara Long alleged that she had been discriminated against on the basis of sex and on the basis of her association with Ms. Heather Knibbs, a person who she alleged could be identified by a prohibited ground of discrimination, namely disability (or perceived disability).

More specifically, Ms. Long alleged:

1. After she took a medical leave for an injury she sustained at her other job and became pregnant, the Respondents prevented her from performing her regular duties and reduced her work hours;
2. The Respondents continued to prevent her from performing her regular duties and working her regular hours even after she provided the Respondent with a doctor's note stating that she was capable of working her pre-pregnancy hours; and
3. Because of her relationship with Ms. Knibbs, the Respondents falsely accused her of stealing money and suspended her, delivered a letter to the police making unfounded allegations against her in addition to Ms. Knibbs.

The Respondent, in its submissions denied that any discrimination or reprisals had taken place, stating that all of its decisions with respect to Ms. Knibbs and Ms. Long had been properly taken, based on operational needs or were appropriate in the circumstances, and, in any event, always in accordance with the Code.

Heather Knibbs' Application

Issue #1: Did the Respondents discriminate against Ms. Knibbs because of her disability?

The Tribunal found that Ms. Knibbs' diabetes and depression easily fell within the Code's definition of disability. With that aside, the Tribunal turned to consider each one of the alleged acts of discrimination.

Firstly, since Ms. Knibbs' contract of employment guaranteed her at least 40 hours per week, coupled with the fact that she had a priority in scheduling, the Respondent's demotion of Ms. Knibbs' status from full-time to part time, was discriminatory. The Respondent's claim that its financial situation required a significant reduction of Ms. Knibbs' hours, did not square with the fact that total staff hours had not been reduced dramatically.

Further, Mr. Bourne, a supervisor of Ms. Knibbs, had testified that the Applicant had lost priority in scheduling because she was not working. According to the Tribunal, this was an admission by the Respondent that the Applicant's status had changed merely because she was on a disability-related leave. This was clearly discriminatory.

Second, the Respondent's requirement that Ms. Knibbs provide a letter from a doctor stating that she no longer has any symptoms of depression, and her diabetes fully under control was discriminatory. The Tribunal flatly rejected the Respondent's bald assertion that their insurance company had required that such a letter be sent to the Applicant.

The employer has a duty to permit an employee with disability-related needs to return to the workplace to attempt to accommodate him or her to the point of undue hardship. An employer must give thought or consideration to the issue of accommodation, which the Respondent had not done, in violation of the Code.

Third, the Respondent's publication of Ms. Knibbs personal medical information in the workplace, including the the fact she had depression , stigmatized her and irreparably poisoned the work environment. This clearly constituted discrimination.

In so holding, the Tribunal underlined the following :

1. The Respondents had put up the posting in a public area of the workplace without Ms. Knibbs' consent;
2. The posting was up for at least four days;
3. A significant number of Ms. Knibbs' fellow employees saw and read the posting;
4. While some of Ms. Knibbs' co-workers knew she had diabetes, few knew she suffered from depression;
5. When the Respondent finally pulled the posting down at the request of Ms. Knibbs (who had become aware of it), it took no other steps to repair or remedy the situation.

Fourth, the Tribunal found that the layoff that the Applicant had been subjected to during her medical leave, was also discriminatory. In so deciding, the Tribunal applied a but-for test; but-for the disability-related leave, the Applicant would not have been laid-off.

Issue #2: Did the respondents subject Ms. Knibbs to reprisal for asserting her Code-protected rights and starting a human rights proceeding?

The Tribunal found that the Respondent's demand that the Applicant meet with the Respondents to discuss her purported misconduct, including the improper taking of money from the Respondent Company and a number of complaints that had apparently been launched against her by fellow staff members pre-leave, was a reprisal for the Applicant asserting her Code-protected rights.

The Tribunal found:

• The Applicant's honesty was beyond reproach. There was no evidence whatsoever implicating Ms. Knibbs in any wrongdoing pre-leave, aside from the fact she was an employee at the time the money was taken.
• With respect to the "alleged employee complaints" against Ms. Knibbs and none of the employees who had apparently made the complaints, gave testimony in support of them.
• The timing of the demand defied coincidence. It had followed within two weeks of the letter sent by Ms. Knibbs' legal counsel asserting that the Respondents were in breach of the Code's prohibition against discrimination on the ground of disability.

Further, the Respondent's letter to the police, which had referenced Ms. Knibbs' human rights Application, was a direct and intentional reprisal for the making of such an application, especially in light of its timing and the fact that the allegations contain therein against Ms. Knibbs were patently false.

Issue #3: Quantum of Damages

Injury to Dignity, Feelings and Self-Respect

With respect to this head of damages, Ms. Knibbs was awarded $20,000.00 by the Tribunal. In justifying its decision as to quantum, the Tribunal stated:

I find that the respondents' discriminatory treatment of Ms. Knibbs was serious. The respondents, despite being aware of Ms. Knibbs' vulnerability because of the death of her father and her associated health problems, subjected her to a series of acts of discrimination based on her disability, a threat of reprisal, and an act of reprisal.

Lost Income

Worthy of specific note, the Tribunal found that Ms. Knibbs' job search efforts, applying for eight jobs and attending at one interview over 3 months in a depressed economy (while in a frail state of health), was sufficient to discharge her duty to mitigate her losses.

Barbara Long's Application

Issue #1: Did the Respondents discriminate against Ms. Long because of disability?

Yes, because the Respondents had denied Ms. Long light duties after she suffered a workplace injury at another job. In fact, the Tribunal found that the Respondent had not even attempted to accommodate Ms. Long's medical needs to the point of undue hardship, a blatant violation of the Code. The Respondents' taking of the position that Ms. Long had to do the whole of the job, or nothing at all, was discriminatory on its face, as was their position that Ms. Long did not have to be accommodated because she was only a part-time, as opposed to full-time, employee.

The Respondents presented no evidence that arranging for someone to assist Ms. Long with her heavy duties until she had recovered from her injury, would have caused them undue hardship.

Issue #2: Did the Respondents discriminate against Ms. Long because of sex?

The Tribunal found that the Respondents had discriminated against Ms. Long by denying her overnight shifts and her usual hours based on their view that pregnant women can not safely do such work given their physical state. This was direct discrimination based on stereotypes, and was inexcusable. The Tribunal pointed out that the discrimination based on sex continued even after Ms. Long had provided a letter to the Respondents which stated unequivocally that she was fit to perform work at night; and resume her pre-pregnancy hours.

Issue #3: Did the Respondents discriminate against Ms. Long because of her relationship, association and dealings with a person identified by a prohibited ground of discrimination?

Yes, Ms. Long had faced reprisals for associating with Ms. Knibbs through employment and family, which the Respondents were aware of. The Tribunal found that:

• Ms. Long was directed not to speak with Ms. Knibbs following her commencement of a human rights proceeding against the Respondents;
• She was directed not to live with Ms. Knibbs, and not long thereafter, Ms. Long was suspended for an alleged act of misconduct and a letter was sent by the Respondents to the police making allegations against her (which were totally unsubstantiated).
• The letter made explicit reference to the Human Rights Application, to Ms. Long and Ms. Knibbs familial relationship and to the fact they were living together. It was clearly a retaliation.

As Ms. Knibbs was a person identified (or perceived to be identified) by a prohibited ground of discrimination, namely disability, this constituted discrimination within the meaning of the Code.

The Tribunal concluded that the cumulative effect of the Respondents' discriminatory actions, in particular its failure to take any steps to resolve Ms. Long's suspension, had effectively severed the employment relationship.

Issue #4: Quantum of Damages

Injury to Dignity, Feelings and Self-Respect

With respect to this head of damages, the Tribunal awarded Ms. Long $13,000.00. In justifying its decision as to quantum, the Tribunal noted:

. . . I find that the respondents' offensive treatment of Ms. Long was also serious. The respondents failed to accommodate her disability-related needs, which resulted in a loss of work hours. More seriously, knowing that Ms. Long was vulnerable as a soon-to-be single mother, the respondents cut her hours because she was pregnant. To make matter worse, the respondents then suspended Ms. Long from her job and an Officer of the Club intentionally tried to harm her by trumping up allegations to incite the police to investigate and charge her with criminal offences. The further loss of work hours obviously caused her significant stress because of the impending birth of her baby and her future financial needs.

Lost Income

With respect to this head of damages, the Tribunal awarded Ms. Long $6,084.00 to put her back into the position she would have been in had the discriminatory acts not occurred. This was the amount she would have earned, had she been permitted light duties; had she been permitted to work her usual hours while pregnant; and had she had not been improperly suspended.

Interestingly, the Tribunal also accepted Ms. Long's request that she be awarded an additional amount for loss EI maternity/parental benefits as a result of having less insurable hours.

PROCEDURAL RULINGS

Sarah Rogers v. Holcim (Canada) Inc.

In this case, the Applicant alleged discrimination in employment on the grounds of sex and pregnancy. The respondent had requested that the Application be deferred pending the outcome of a reconsideration of an Ontario Ministry of Labour order made pursuant to the Ontario Employment Standards Act.

Since the decision dealt with the same subject matter as the proposed proceeding before the Tribunal, namely whether the employer had acted improperly in contravening the pregnancy leave provisions of the Employment Standards Act, for which reinstatement could be ordered, the Respondent's request was granted.

Davis v. Sarnia Golf Club

In this case, the Applicant filed an application alleging discrimination, but the last incident of discrimination described in the application had occurred more than one year before the filing of the application.

Section 34 of the Code provides that:

34 (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

(b) 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 and no substantial prejudice will result to any person affected by the delay.

As a result, the Tribunal sent a notice advising the Applicant that the application appeared to fall outside of its jurisdiction and requesting written submissions addressing the issue within five weeks. The Applicant did not respond to the Tribunal's Notice so his application was dismissed as abandoned.

- 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

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

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