John Riddell v. IBM Canada Ltd., 2009 HRTO 434

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Riddell

Complainant

-and-

IBM Canada Ltd.

Respondent

INTERIM DECISION

Adjudicator: Michael Gottheil

Date: April 14, 2009

Citation: 2009 HRTO 434

Indexed as: Riddell v. IBM Canada

Appearances

John Riddell, Complainant ) On His Own Behalf

IBM Canada Ltd., Respondent ) Valerie Dyer, Counsel

INTRODUCTION

1This is a Complaint brought under the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the ground of age. The essence of the Complaint is that the respondent engaged in a course of conduct designed to coerce the complainant into accepting early retirement. The complainant alleges that when he refused offers of early retirement, the respondent began to unfairly scrutinize his work, placed him on successive performance improvement plans with unreasonable expectations, belittled him because of his age, demoted him, and eventually terminated his employment. The respondent accepts that it had early retirement incentives in place which were offered to the complainant, but denies that its actions in anyway were in violation of the Code. The respondent alleges that the complainant was demoted and then terminated for poor performance.

2The Complaint was referred to the Tribunal by the Ontario Human Rights Commission (the “Commission”) on November 27, 2007 under the “old Part IV” of the Code. The parties exchanged hearing briefs in accordance with the Tribunal’s Rules (the complainant relied on the hearing brief and reply submitted by the Commission). Subsequently, the Commission withdrew from the proceedings.

3This Interim Decision addresses a Request by the respondent to strike certain portions of the Commission’s hearing brief, reply, and correspondence which form part of the pleadings. The respondent also opposes a production request made by the Commission before it withdrew, which production request was also adopted by the complainant.

4The respondent and complainant filed written submissions on the Request, and I heard oral submissions at a hearing held on April 3, 2009.

5The respondent’s request is framed as seeking to strike certain statements of fact set out in the pleadings. For the purposes of this Interim Decision, the Request can more usefully be described as challenging, what the respondent asserts is an improper attempt to expand the scope of the Complaint. The respondent argues that the Commission’s pleadings raise three new allegations which did not form part of the original Complaint:

a. That the respondent breached the Code because it required the complainant to meet the same performance standards as younger employees. In other words, the Commission’s pleadings, adopted by the complainant, allege that the respondent had a duty to accommodate the complainant’s age by allowing him to meet lower performance standards than other employees.

b. That the various early retirement severance programs offered by the respondent constituted systemic discrimination based on age;

c. That the respondent breached the Code by failing to investigate claims of age discrimination raised by the complainant. In relation to this issue, the respondent also asserts that certain “without prejudice” correspondence between counsel for the complainant and in-house counsel for the respondent is privileged, and should not be considered in these proceedings.

6In addition, the respondent argues that certain paragraphs of the pleadings which allege the complainant was demoted and terminated “without just cause” should be struck, since the Tribunal has no jurisdiction over such claims. Likewise, the respondent argues that allegations concerning the complainant’s employment insurance claim are outside the Tribunal’s jurisdiction.

ISSUES RESOLVED AT THE HEARING

7At the hearing, most of the issues raised by the respondent were resolved, through consultation with the Tribunal, and the parties clarifying their respective positions on the scope of the Complaint. On some issues, the respondent was prepared to withdraw its request at this time, subject to having the right to address any concerns if and when evidence was put forward by the complainant, or at the end of the hearing in closing argument. I set out in this section of the Interim Decision the matters upon which the parties were able to agree. The issue related to the alleged failure to investigate was not resolved, and I set out my ruling in the next section.

Duty to Accommodate by Setting Lower Performance Standards for Older Workers

8The Commission’s hearing brief asserted the respondent had an obligation to set lower production standards for the complainant, and permit a higher error rate in his work product, because of his age. The complainant agreed that this assertion was not part of his Complaint, and in fact, he claims that with proper training and support, he was fully capable of meeting the same work performance standards as other employees. As a result, the parties were able to resolve the respondent’s request on this issue by having the following stipulation on the record:

The complainant is not advancing the position that he needed accommodation in the sense of long term and permanent lower standards, but rather he needed familiarization and adequate training. The complainant also claims that he was being targeted, and his work performance was overly scrutinized, which hampered his ability to meet the required work standards.

Early Retirement Severance Incentive Programs Constituted Systemic Discrimination Against Older Workers

9It appears that this assertion was based on a misunderstanding that the respondent had instituted severance incentives aimed only at older workers. In fact, the respondent had a series of severance incentive programs offered to a range of employees. Certain packages were tailored to older employees in order to co-ordinate the severance benefits with pre-existing pension and retirement benefits.

10The complainant agreed that he was not pursuing the allegation that the existence of early retirement severance packages constituted age discrimination. He does claim the respondent attempted to coerce him to accepted early retirement packages.

Allegations that Demotion and Termination were “Without Just Cause”

11Through discussions at the hearing, the parties agreed that the Tribunal does not have the jurisdiction to resolve claims that a demotion or termination was “without just cause.” The parties accept that an action by an employer that is taken without any apparent basis may be relevant in determining whether discrimination on a Code related ground was a factor in an employer’s decision to demote or terminate an employee. However, the Tribunal’s jurisdiction is limited to determining whether there was differential treatment or harassment based on an enumerated ground in the Code. Based on this understanding, the respondent indicated it withdrew its request in relation to this issue.

Employment Insurance Claim

12The hearing brief alleged that the complainant’s EI claim was denied because of statements made to an EI claims officer by the respondent to the effect that the complainant had “retired.” Based on the parties’ agreement and understanding that the Tribunal has no jurisdiction to determine whether EI officials were correct in allowing or denying a claim, the respondent indicated that it was not pursuing this aspect of the request. The respondent stated that it reserved the right to address the relevance of evidence related to the denial of the EI claim at the conclusion of the hearing.

Production Request

13The complainant confirmed that he was not pursuing the production request made by the Commission.

FAILURE TO INVESTIGATE / WITHOUT PREJUDICE COMMUNICATION

14The respondent objects to the assertion, contained in the Commission’s hearing brief, that “IBM did not consider, investigate or address Riddell’s human rights concerns through its internal human rights process.” The respondent asserts that this is an entirely new allegation and should not be permitted to form part of the hearing before the Tribunal. The respondent also objects to any reference to a “without prejudice letter” sent by the complainant’s employment lawyer in November 2001. The Commission referred to the letter in its pleadings because the letter allegedly establishes that the respondent knew of human rights related concerns being raised by the complainant. (The respondent does not deny the complainant raised concerns in late 2001, that certain comments made by managerial employees of the respondent constituted discrimination on the basis of age).

15For the reasons that follow, I find that it would not be fair or proper to permit the complainant to raise the allegation that the respondent failed to investigate through its internal human rights policy. As a result, I need not decide whether the November 2001 “without prejudice” letter is admissible.

16The complainant filed his original Complaint in March 2002 in response to his demotion. In October 2003, an amended Complaint was filed. The respondent fully participated in the Commission investigation, filing a response and providing extensive disclosure. Neither the original Complaint, nor the amended Complaint made any reference to an alleged failure to investigate.

17On September 27, 2005 the Commission decided not to refer the Complaints to the Tribunal for a hearing. The complainant sought Reconsideration of the decision not to refer. On November 27, 2007 the Commission granted the Reconsideration and decided to refer the Complaint to the Tribunal. The referral makes no reference to a failure to conduct an internal investigation.

18In my view it would be grossly unfair for the respondent to have to defend against this new allegation, 6 years after the amended Complaint was filed and almost 8 years after the complainant alleges the respondent ought to have taken some action.

19This is not a situation in which an employer was unresponsive to claims by an employee that his human rights were being infringed. There is no dispute that, in 2001, when the complainant raised concerns with his supervisor about age discrimination, she referred him to the respondent’s human resources department so that he might have the concerns addressed through the company’s internal human rights policy. He declined. When he was demoted, he immediately approached the Commission and filed a Complaint. The respondent fully participated in the investigation conducted by the Commission. The investigation process spanned 4 years. At no time did the complainant or the Commission ever raise the issue of the respondent not having conducted an internal investigation.

20When asked why he delayed in raising the respondent’s alleged failure to conduct an internal investigation, the complainant said he did not realize the respondent’s policy provided for an internal investigation.

21The respondent referred to a number of Tribunal decisions which deal with the circumstances in which the Commission or complainant will be permitted to amend the scope of a referred Complaint. [See e.g. Boldt-MacPherson v. The Hoita Kokoro Centre and John Hoita, 2008 HRTO 16; Garrelhas v. ICE Consultants Inc., 2006 HRTO 6.]

22There are a number of reasons why it would not be appropriate to permit the complainant to add this allegation. First, there is no good reason provided why the allegation was not raised earlier. Second, allowing the addition of this allegation would result in a substantial lengthening of the hearing.

23Finally, I find that the respondent would suffer substantial prejudice were it required to defend its actions in responding to concerns raised by the complainant. I am satisfied the complainant knew about his right to seek an internal investigation, but chose instead to file a Complaint with the Commission. He was entirely within his right to do so, but if he felt the respondent had failed in some way to meet an obligation required under the Code, he should have raised the issue in the Complaint or amended Complaint. Likewise, if the Commission believed the respondent had acted improperly, it should have raised that allegation promptly, so the respondent could have gathered evidence and provided a timely response. Instead, the respondent was unaware, for almost 8 years, that its failure to address the complainant’s concerns through its internal human rights policy would be at issue.

24As a result, paragraphs 18, 30, 33 and 36 of the Commission’s Statement of Facts and paragraph 5 of the June 4 letter from Commission Counsel shall be struck from the pleading.