Hill v. University of Waterloo, 2009 HRTO 1231

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Murray Hill

Applicant

• and-

University of Waterloo

Respondent

case Resolution Conference DECISION

Adjudicator: Keith Brennenstuhl

Date: August 7, 2009

Citation: 2009 HRTO 1231

Indexed as: Hill v. University of Waterloo

AppearanceS BY

Murray Hill, Applicant ) On his own behalf

University of Waterloo, ) D. Brent Labord and Phil Simpson, Rick Zalagenas, ) Kathryn L. Meehan, and Michael Wolfe, Respondents ) Counsel

1This is an Application filed September 3, 2008 under section 53(3) of the Human Rights Code, R.S.O, c. H. 19 as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on April 20, 2006 and abandoned upon the filing of this Application with the Tribunal. The applicant claims that his employer, the corporate respondent, treated him differentially in employment owing to his disability. An earlier Interim Decision, 2009 HRTO 414 dismissed the allegations based on marital status.

2The Case Resolution Conference (“hearing”) was held on July 6 and 7, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner given they are often based on complaints, like this one, which are over a year old by the time they reach the Tribunal.

3Evidence and submissions on remedy were reserved until my decision on the merits was issued.

PRELIMINARY REQUEST

4The respondent requested that the personal respondents, Phil Simpson, Rick Zalagenas and Michael Wolfe, be removed as parties to these proceedings. They were the applicant’s supervisors.

5The power of the Tribunal to remove parties from Transitional Applications is found in section 4.3(b) of the Rules Governing Transitional Applications under Section 53(3) and 53(5) of the Code.

6In Persaud v. Toronto District School Board, 2008 31 (CanII), the Tribunal set out a list of factors that are helpful in assessing whether an individual respondent should be removed. Having considered those factors, I am satisfied that the personal respondents should be removed as personal respondents from these proceedings.

7The personal respondents were all employees of the University of Waterloo during the period in dispute. Mr. Wolfe and Mr. Simpson have since retired. The corporate respondent acknowledges vicarious liability for the conduct of the personal respondents and there is no issue as to the corporate respondent’s ability to respond or remedy the alleged Code infringement. The applicant has not sought any remedies against the personal respondents.

8I am satisfied that in light of the particular factual allegations against the personal respondents and the liability of the corporate respondent for the acts of its employees imposed by section 46.3 of the Code, there is no compelling reason to continue the proceedings against the personal respondents or any prejudice to the applicant in removing them. The style of cause is amended accordingly.

BACKGROUND

9The applicant is employed by the corporate respondent as a plumber in its Plant Department. The Plant Department’s general function is to operate and maintain all university buildings.

10According to the applicant, beginning in 2001, he began to experience stress due to the deterioration of his marital relationship. The applicant alleges that since mid 2001, he was targeted by his employer, provoked and treated differently as follows:

• in mid 2001, he was overlooked for promotion;
• in August 2002, he was transferred to a different area on the campus;
• management did not co-operate to resolve staffing issues;
• in October 2003, he was demoted from a Lead Hand position;
• his union refused to pursue his grievance claiming he had no case;
• in 2004, management questioned his doctor’s note for sick leave on an intermittent basis;
• he never received his fair share of overtime; and,
• one of his disciplinary letters dated May 2004 accused him of falsifying his time sheet.

DECISION

11The Application is dismissed.

ANALYSIS

12I will assume, without making findings to that effect, that the applicant was under stress during the period in question and that his condition amounted to a disability as defined by the Code. In order to succeed, the applicant has to establish that he experienced differential treatment related in some part to his disability.

13In my view, the applicant has failed to establish differential treatment. Other than his own assertion, the applicant provided no evidence to demonstrate that the treatment he received at the hands of his employer was different from the treatment any other employee would experience in similar circumstances.

14The applicant called four fellow employees as witnesses. Rather than offering evidence to support the applicant’s position concerning his treatment, they painted a picture of an employee who challenged and even disregarded well known workplace policies and practices that they had to follow in their employment.

15For example, with respect to concerns about the impugned medical note, the applicant testified he asked the doctor to request that the applicant have “intermittent” time off over a period of eight weeks so that he would not have to return to the doctor every time he chose to be absent. The applicant’s witness was quite clear that this type of note was not in accordance with the respondent’s practice which required a fresh medical note for each absence, a practice that the witness testified to following.

16In addition, the applicant was of the opinion that it was improper for the respondent to question the medical note. In my view, however, the respondent was entitled to question the note and to ask the applicant to provide more specific information from his doctor, which the applicant refused to do. The term “intermittent” is vague and not something that one would reasonably expect an employer to act on in the absence of more information. Does “intermittent” mean an hour at work,, then an hour of rest, a day of work, then a day off, a week working and then a week off or some other variation? To a large degree, though, the question need not be decided as the applicant testified that for the next eight weeks he did not need any time off and that he did not miss any time at work for the next eighteen months.

17The applicant complained that he never received his fair share of overtime. It became apparent however that he was not offered overtime because he removed himself from the overtime list when the union, with the consent of a majority of its members, changed the formula for sharing overtime, a change with which the applicant strongly objected.

18There is no doubt that the applicant disagreed with some of his employer’s policies and practices. That he felt that he was being treated unfairly at times is not questioned. However, this does not constitute differential treatment. The Tribunal’s authority is limited to dealing with claims of discrimination under the Code. It does not have the general power to resolve disputes about other matters or claims of unfairness unrelated to the Code.

19The onus is on the applicant to make out a claim of discrimination. he has failed to do so. I am not satisfied the applicant experienced any differential treatment in the workplace attributable to disability.

ORDER

20For all these reasons the Application is dismissed. It will not be necessary to hear from the parties on remedy.