HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ronald Davie
Applicant
- and-
PMA Brethour Real Estate Corp. Inc. and Sue Di Illio
Respondents
AND B E T W E E N:
Ronald Davie
Applicant
-and-
Monarch Corporation and Brian Johnston
Respondents
CASE RESOLUTION CONFERENCE DECISION
Adjudicator: Keith Brennenstuhl
Indexed as: Davie v. PMA Brethour Real Estate
APPEARANCES BY
Ronald Davie, Applicant ) On his own behalf
PMA Brethour Real Estate Corp. Inc. ) Christina J. Wallis, and Sue Di Illio, Respondents ) Counsel )
Monarch Corporation and Brian Johnston, ) David Elenbaas, Respondents ) Counsel
1These are Applications filed December 22, 2008 under section 53(3) of the Human Rights Code, R.S.O, c. H. 19 as amended (the "Code"). The underlying human rights complaints were filed with the Ontario Human Rights Commission on November 14, 2005 and June 16, 2006 and abandoned upon the filing of these Applications with the Tribunal. The applicant claims that he has suffered discrimination in the area of employment on the basis of disability.
2The Case Resolution Conference ("CRC") was held on June 12 and August 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.
3Evidence and submissions on remedy were reserved until my decision on the merits was issued.
BACKGROUND
4The corporate respondent, Monarch Corporation ("Monarch") is a builder of residential homes and condominiums. The personal respondent, Brian Johnston is the president of Monarch. The corporate respondent, PMA Brethour Real Estate Corp. Inc. ("PMA") is a licensed real estate broker. PMA retains licensed real estate sales agents who engage in the sale of homes and condominiums. The sale of Monarch homes has been conducted exclusively by PMA for over 40 years. PMA also acts as a broker for a number of other home builders in Ontario. During the period in question, PMA represented over 35 builders on over 80 projects in the GTA.
5PMA assigns sales agents to sell Monarch residences as part of an overall sales and marketing team under the guidance of the personal respondent, Sue Di Illio, the principal manager for PMA responsible for the Monarch account. During the period in question, Ms. Di Illio was responsible for the management of ten Monarch new home projects with over 40 sales and administrative personnel.
6From time to time between February 2001 and September 2005, the applicant was one of many sales agents assigned by PMA to Monarch and non-Monarch sites where he engaged in the direct sale of new homes and condominiums to the public. During the relevant period the applicant was also and continues to be licensed as a sales agent for Century 21 for the sale of homes in the resale market.
7In the fall of 2003, PMA assigned the applicant to Monarch's Bridal Walk Community and then in October 2004 he was assigned to Monarch's Upper Thornhill project which he shared with another PMA sales agent. In January 2005, owing to a downturn in new home sales, PMA reduced the sales force at the Upper Thornhill project leaving the applicant as the only sales agent for the project.
8The sales office at the Upper Thornhill site was to be opened during the hours fixed by PMA. According to PMA, once the applicant became the sole sales agent for Upper Thornhill the applicant would often arrive late at the Upper Thornhill sales office. The applicant does not dispute this and indicates that he was late getting to the office on a regular basis by five to ten minutes.
9In August 2005, PMA had the applicant "shopped". This is a process whereby a broker retains an experienced sales agent who takes the role of a prospective home purchaser for the purpose of evaluating the performance of other sales agent, in this case the applicant. The shopper, Leigh-Ann Del Rio, testified that this is a common practice in the industry and that she had shopped the applicant two or three times before. Having shopped the applicant, Ms. Del Rio reported back to PMA. The report was very positive except for the observation that the applicant was attempting to list Monarch's prospective purchasers for his own resale activity. According to Ms. Del Rio, this practice was a clear conflict of interest. The applicant did not dispute that this conduct would have been a conflict of interest.
10Allegedly, on learning of his practice, Monarch asked that PMA replace the applicant at Upper Thornhill. On September 12, 2005, Ms. Di Illio attended on the Upper Thornhill site, confronted the applicant with the shop report, and allegedly told the applicant he was being re-located to another PMA site. Ms. Di Illio testified that at this point the applicant denied engaging in any improper practices.
11According to the applicant, on September 12, 2005, Ms. Di Illio arrived at the Thornhill sales office unannounced and informed him that he was terminated from Monarch due to frequent lateness.
12The applicant contends that the termination was an act of discrimination prohibited by the Code. He states he has Crohn's disease and that a common symptom of the disease is the frequent, urgent need to visit a restroom. According to the applicant, this caused him to be late on many occasions. The applicant contends that the respondents knew or ought to have known that he had Crohn's disease and that they should have recognized his lateness as an accommodation.
Chronology
13The applicant presented evidence at the CRC on June 12, 2006 with respect to his claim against Monarch and Mr. Johnston. He gave evidence with respect to his relationship with Monarch and he was cross-examined by Monarch. He called two witnesses who were cross-examined by Monarch. Monarch called one witness and she was cross-examined by the applicant. Closing arguments were provided by the applicant and Monarch/Johnston after which I dismissed the claim as against Monarch and Mr. Johnston with reasons to follow. Those reasons are set out below.
14I then requested the applicant to present his evidence on his disability and how it affected his employment. The applicant presented his evidence in chief and then he examined his witness in chief. At this point the matter was adjourned to August 7, 2009 and I provided the following directions to the applicant: obtain a lawyer if he wished to do so; produce medical records with respect to his disability and income tax returns for the years 2005 and 2006; and attend on August 7, 2009 to finish giving his evidence and to proceed with the remainder of the CRC.
15On July 31, 2009, the applicant requested an adjournment of the CRC scheduled for August 7, 2009 to enable the applicant to retain counsel and for a publication ban. For the reasons set out in Interim Decision 2009 HRTO 1198, the requests were denied.
16On August 7, 2009, the applicant appeared at the CRC without counsel, refused to proceed in the absence of counsel and left the hearing centre. I proceeded with the CRC.
17The applicant did not produce any further medical records and the income tax returns as directed.
18At the conclusion of the CRC, I instructed counsel for PMA and Ms. Di Illio to provide me with written submissions according to a time line that I established and to deliver a copy of the submissions to the applicant. The applicant has provided written submissions in reply to which I have given my full consideration.
DECISION
19The Applications are dismissed.
ANALYSIS
Employment
20The applicant claims that he was subjected to discrimination owing to a disability in the area of employment. He advanced the argument that he had an employment relationship with Monarch and he requested, among other remedies, that Monarch re-instate him to his previous position as a sales agent selling new homes at the Upper Thornhill site.
21I appreciate that a person need not necessarily be an employee in the sense used in labour relations law or the law of master and servant to qualify for "employment" protection under the Code. However, in my view, the applicant has failed to demonstrate that his relationship with Monarch was an employment relationship within the meaning of the Code. There was no employment contract with Monarch. The applicant had no reporting relationship with anyone at Monarch and was at all times responsible only to PMA. Monarch did not remunerate the applicant. The applicant had no benefit plans with Monarch. He never received a T-4 or an ROE from Monarch.
22Monarch was PMA's client and provided services to it. PMA retained sales agents including the applicant. PMA determined the applicant's hours of work, when he could take time off, which building site he was to work at, his rate of remuneration. The evidence indicates that the applicant participated in PMA social events and meetings. He was supervised by Ms. Di Illio, a PMA sales manager.
23The applicant claims that he would often deal directly with Monarch. While this may be so, it would appear that this was largely with respect to offers of purchase and sale that he would procure at a Monarch site. In my view, this is the substance of a real estate sales agent's job, to work with clients with the aim of securing contracts of purchase and sale. In my view, this is not indicative of an employment relationship.
24The applicant further points out that while working at a Monarch site, he was supplied with a name tag and business cards in his name bearing the name "Monarch" and its logo. In my view, this factor alone does not demonstrate that Monarch had a Code protected employment relationship with the applicant.
25The applicant testified that all of the other sales agents were "working" for PMA but that he was the "exception to the rule." I am not satisfied there is any evidence, other than the applicant's assertion, to support this claim. In my view, the applicant was working for PMA like all the other agents. I find that the applicant did not have an employment relationship with Monarch that would attract the protection of the Code. However, should this be incorrect, I am nevertheless satisfied that Monarch and Mr. Johnston are not liable under the Code for the reasons that follow.
Disability
26The applicant sates he has a disability. The only medical evidence supporting this claim are two medical notes which are dated post the applicant's replacement at Upper Thornhill. The February 27, 2006 note refers to the applicant as a "gentleman with longstanding Crohn's disease, who was found to have recurrent disease in his neoterminal ileum." The October 14,2005 note appears to be the diagnosis of the recurrence. Together these notes suggest that there are periods of remission when the applicant is free of symptoms associated with Crohn's.
27The applicant was directed to produce additional medical records for the years 2005 and 2006. He did not do so. He failed to remain for the second day of the CRC when he was to provide evidence with respect to his disability. It is unclear whether the applicant was symptomatic or free of symptoms associated with Crohn's during the period in question.
28The applicant alleges that his disability was the reason he was often late for work. The applicant, however, has failed to provide any evidence to support this claim or connecting it to a pattern of morning lateness.
29The applicant maintains that PMA and Monarch knew about his disability, or that they ought to have known, and therefore should have provided the appropriate accommodation. Although there was no written communication addressing his disability, the applicant claims that he told the Vice-President of Marketing at Monarch, the Market Manager at Monarch and Ms. Di Illio that he had Crohn's disease. All three disputed this in their oral testimony and, as did the president of PMA, stated they only became aware of the applicant's medical condition when they received his Human Rights complaint.
30Peggy Robinson, a PMA sales agent who worked with the applicant on Monarch sites for over a year, testified on behalf of the applicant. She sated the applicant told her he had Crohn's disease but that she did not tell anyone. However, in two e-mails sent to PMA after the complaint was filed with the Commission, Ms. Robinson indicated that she was aware that the applicant had a medical condition but she could not recall him ever saying what it was. Her e-mails go on to state that the applicant never called in sick, was never unable to come to work and that his condition did not seem to interfere with his work ability.
31I find that the applicant has failed to establish on a balance of probabilities that PMA, Monarch or the personal respondents knew of the applicant's condition.
32The applicant maintains in the alternative that the respondents ought to have known that he had a disability because he was in the habit of stopping at Monarch's head office on his way to the Upper Thornhill site from home to use the restroom and that this stopover was the reason why he would arrive late at the Thornhill sales office. Several Monarch employees who worked at the head office testified, however, that they had no recollection of the applicant coming to head office to use the restroom. Their recollection was that when the applicant did come to head office it was to drop off papers such as sales agreements. Even if the applicant did use the washroom as alleged, it would appear that no one would know. According to the applicant, Monarch staff would not be able to see anyone coming in from the outside to use the washroom as the washroom was not visible to staff.
33The applicant testified that he did not want people to know about his condition and that in fact most people would not know about it. He indicated that he never missed a day of work because of his disability and that he never let his disability interfere with his day to day service.
34I find that neither PMA or Monarch nor the personal respondents knew, or ought to have known, that the applicant had a disability. Whether his departure from the Upper Thornhill site is characterized as a re-location as claimed by PMA or a termination of employment as claimed by the applicant, I am satisfied that disability was not a factor in the applicant's removal from the site.
ORDER
35For all these reasons the Applications are dismissed. It will not be necessary to hear from the parties on remedies.
Dated at Toronto, this 22nd day of September, 2009.
"Signed by"
Keith Brennenstuhl
Vice-chair```