HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Randy Selinger Complainant
-and-
Ontario Human Rights Commission Commission
-and-
Jim McFarland Respondent
DECISION
Adjudicator: Leslie Reaume Date: July 30, 2008 Citation: 2008 HRTO 49 Indexed as: Selinger v. McFarland
Human Rights Tribunal of Ontario 655 Bay St., 14th Floor Toronto ON M7A 2C7 Phone (416) 314-8419 Fax (416) 314-8743 Toll free 1-866-598-0322 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar-transition@ontario.ca Website www.hrto.ca
APPEARANCES
Randy Selinger, Complainant ) On his own behalf Jim McFarland, Respondent ) No one appearing Ontario Human Rights Commission ) Nils Riis, Counsel
Introduction
1The complainant in this matter, Randy Selinger, alleges that he experienced discrimination on the basis of disability and sexual orientation in employment pursuant to sections 5(1) and 9 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The complainant was employed by McBride Cycle in Toronto Ontario as a commissioned sales person from approximately April 2002 to December 2003. The complainant alleges that the respondent, Jim McFarland, held himself out as one of the senior managers in the organization and the manager responsible for human resource related issues.
3The complainant self-identifies as a person living with bipolar disorder. The essence of the complaint is that, because of his disability, the complainant was bullied and harassed by two of his co-workers while he was employed at McBride Cycle. The complainant alleges that he reported the conduct to the respondent who then failed to take any action to deal with the complainant’s concerns. The respondent did not attend the hearing despite being provided with proper notice by both the Tribunal and the Commission throughout the pre-hearing process.
4The ground of “perceived” sexual orientation appears in the complaint because the complainant alleges that some of the comments and conduct he experienced could be described as homophobic in nature and may have arisen from a perception that he was gay.
5The complaint was originally made against McBride Cycle and the two co-workers alleged to have participated in the harassment. The Commission discontinued the complaint against McBride Cycle when the company went into receivership. The complainant also settled with the two co-workers who were originally named in the complaint. Those co-workers are not named in this proceeding nor have any findings been made against them or McBride Cycle in this decision. This decision relates only to the allegations against the respondent, Jim McFarland.
Notice to the Respondent
6The proceeding before the Tribunal in this complaint commenced during the initial conference call held September 12, 2006. The respondent, Jim McFarland, appeared on the call representing himself, the corporate respondent and two co-workers of the complainant who were named as individual respondents.
7Following the initial conference call, the Commission obtained further information from the respondent, who confirmed that the corporate respondent was in receivership. The complaint was discontinued against the corporation.
8Before setting a date for the exchange of materials and the hearing itself, the Tribunal wrote to the parties on February 22, 2007 offering dates for a pre-hearing conference call (Exhibit 4). The respondent failed to contact the Tribunal. The Commission conducted a driver’s licence record search through the Ministry of Transportation on February 28, 2007, and confirmed the respondent’s address in Mississauga, Ontario (Exhibit 1).
9The Commission served its Statement of Facts, Issues and Remedy on the respondent by courier on April 13, 2007, at the address confirmed by the Ministry of Transportation. The statement of service confirms that the respondent signed for the courier personally (Exhibit 5). The respondent is named personally in the Statement of Facts, Issues and Remedy.
10By letter dated June 18, 2007, the Tribunal wrote to the parties offering dates for hearing (Exhibit 6). Again the respondent failed to contact the Tribunal and indicate his availability for the hearing. The Tribunal then notified the parties by letter dated