Hill v. University of Waterloo, 2009 HRTO 414

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Murray Hill

Applicant

-and-

University of Waterloo, Phil Simpson, Rick Zalagenas and Michael Wolfe

Respondents

INTERIM DECISION

Adjudicator: Jim Dimovski

Date: April 9, 2009

Citation: 2009 HRTO 414

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 and Rick Zalagenas, ) Kathryn Meehan, Respondents ) Counsel

1This is an Application filed September 19, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2In his complaint filed with the Ontario Human Rights Commission (the "Commission") on April 20, 2006, the applicant alleged that he had been treated differently in his employment due to his family status, record of offences and reprisal. The applicant subsequently amended his complaint arguing he had been discriminated against in his employment based on disability and marital status.

3The respondents seek dismissal of this Application on the grounds that the applicant has not set out a factual basis that could support an infringement under the Code. In the alternative, the respondents request that the Application as against the personal respondents be immediately dismissed as the applicant has failed to establish a prima facie case against them.

4This Case Resolution Conference was held in London on February 20, 2009.

The Application

5I have reviewed the Application and understand the applicant's allegations as follows:

• The applicant was employed by University of Waterloo (the "University") in its Plant Department.
• Beginning in 2001, the applicant began to experience "stress" due to the deterioration of his marital relationship.
• In October 2003, the applicant was demoted as lead hand on the basis of substandard work performance. He states that allegation has "never been proven yet".
• By April 2004, the applicant advises the "Ontario Family Court" had taken "75%" of his wages which caused him extreme stress.
• On May 10, 2004, the applicant received a disciplinary letter from the Corporate Respondent for falsifying his time sheet when he did not account for lost time in relation to his appointment with a Psychologist. He responds he was under "stress" and simply forgot.
• The applicant alleges that he was "treated differently"; that he was "targeted, provoked and aggravated" while at work.
• As a result of his work situation, the applicant attempted to pursue a grievance, with the assistance of his Union. The grievance was eventually withdrawn and the applicant filed an application at the Ontario Labour Relations Board ("OLRB") against his Union. The OLRB dismissed that application.

The Motion to Dismiss

6The respondents argue that the applicant's allegations, even if true, are not sufficient to establish an infringement of the Code. The applicant has failed to establish 1) that the allegations fall within a Code-protected ground; and 2) he experienced discrimination or received differential treatment on the basis of a Code-protected ground.

7Respondents' counsel submits the applicant acknowledged, in his OLRB application, that his demotion was due to substandard work and did not assert his performance issues were related to a disability for which he ought to have been accommodated. The May 2004 disciplinary letter was a result of the applicant forgetting to fill out his time sheet and not related to any prohibited ground under the Code or the consequence of differential treatment. The applicant has failed to identify his marital status or how his marital status resulted in any differential treatment. The respondents' counsel also argued that the additional facts arising after his complaint are not to be appropriately considered in this Application.

8The applicant's response essentially re-iterated the allegations contained in his Application.

9Generally, in determining a request to dismiss an application on the basis that the facts alleged do not disclose a breach of the Code, the Tribunal will assume that the facts set out in the applicant's complaint are true.

10In my view, it is not plain or obvious that the Application will fail in its entirety. Although not clearly enumerated in the complaint, the applicant alleges he was under "stress" during the period in dispute and that he had obtained treatment from a physician for his condition during that period. I am satisfied there are sufficient facts alleged on the face of the Application to support finding the applicant has characteristics associated with a disability, a prohibited ground under the Code. Whether the applicant has a disability, as defined by Code and the nature of that disability is a consideration more appropriately addressed at a hearing.

11My analysis of the complaint supports that the applicant felt harassed by his employer. The applicant clearly does not believe that his demotion in 2003 was related to his substandard work or accepted his employer's explanation for his subsequent discipline in May, 2004. The complaint refers to the applicant's marital status and stress and then provides examples of alleged harassment such as the refusal to accept a doctor's note seeking a medical leave. The logical implication is that these constitute the link between the protected grounds asserted and the respondents' alleged differential or discriminatory treatment. In my view, the inference is that he considers his demotion and discipline were the result of his disability.

12Although his complaint is in point form and is difficult to read, when it is read as a whole, I find that the applicant has provided sufficient facts to establish the elements necessary to establish a breach of the Code based on disability in employment.

13With respect to allegations of discrimination based on marital status, I am not satisfied the application and the underlying complaint adequately link the alleged discriminatory treatment to the applicant's marital status, whatever it might have been at the time. Rather, it is clear the applicant's marital difficulties were allegedly the cause of or a factor in his stress but his marital status was not a factor in the respondents' treatment of him. This aspect of the Application is dismissed.

Removal of the Personal Respondents

14Rule 4.3 (b) of the Rules of Procedure for Applications under s. 53 (3) of the Code provides the Tribunal with the authority to remove a party.

15In Persaud v. Toronto District School Board, [2008] HRTO 31, the Tribunal identified the following non-exhaustive list of factors that may be helpful in assessing whether a personal respondent should be removed:

1. whether there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct;

2. whether any issue is raised as to the corporate respondent's deemed or vicarious liability for the conduct of the personal respondent who is sought to be removed;

3. whether there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement;

4. whether any compelling reason exists to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found; and

5. whether any prejudice would be caused to any party as a result of removing the personal respondent.

16Mr. Labord argued that the first three factors favour removing the personal respondents to this Application. In terms of the fourth, Mr. Labord indicates that the applicant failed to identify any of the personal respondents in his Application and has failed to identify any behaviour on their part that would amount to an infringement of the Code. With regard to the fifth factor, he noted that the personal respondents would be significantly prejudiced if the Application proceeds against them as they would suffer the emotional trauma associated with being named a respondent and incur costs of defending this Application.

17The applicant argued that the personal respondents were responsible for the harassment he alleges. He has since clarified his allegations against the personal respondents.

18Section 53(3) applications are designed to be dealt with in a highly expeditious manner and preliminary requests such as this are discouraged. In my view, these types of requests are best left to the adjudicator at the Case Resolution Conference. There is no doubt that the personal respondents would be required to attend the hearing in any event, as their evidence would be required. Further, I question the alleged costs argument in light of the corporate respondent's position that, if any liability is established, the personal respondents were acting within the course of their employment.

ORDER

19In all these circumstances, and after considering the parties' submissions:

1. The respondents' Request to dismiss the Application is refused;

2. The allegations of discrimination in employment based on marital status are dismissed; and,

3. The Request to remove the personal respondents as parties to this Application is refused.

20I am not seized of this matter.