Colm Tyrrell v. Intercall Canada Inc., Jason Foss and Jennifer Bellward, 2009 HRTO 680

Human Rights Tribunal of Ontario

B E T W E E N:

Colm Tyrrell Applicant

-and-

Intercall Canada Inc., Jason Foss and Jennifer Bellward Respondents

Case Resolution Conference Decision

Adjudicator: Keith Brennenstuhl Date: May 25, 2009 Citation: 2009 HRTO 680 Indexed as: Tyrrell v. Intercall Canada

1This is an Application filed September 5, 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 June 13, 2007 and abandoned upon the filing of this Application with the Tribunal. The applicant alleges that the respondents discriminated against him in employment and that he was subjected to a poisoned work environment on the basis of disability and place of origin.

2The Case Resolution Conference (CRC) was held on May 6, 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.

3The hearing of this Application was bifurcated. The parties were advised that the issue of liability would be determined first and in the event an infringement of the Code was found, a further hearing would be set to determine remedy.

DECISION

4The Application is dismissed.

Background

5The applicant commenced employment with the corporate respondent ("Intercall") on April 4, 2004 as a Sales Account Executive. After approximately seven months on the job the applicant requested and was granted a medical leave of absence. He did not return to work until the summer of 2007.

6On June 4, 2007, a conference call was held between the personal respondent, Jennifer Bellward, employment co-ordinator for Intercall, and the applicant to discuss and finalize the applicant's return to work pursuant to a graduated return to work program. Also on the call was Rod Roblin, a rehabilitation counsellor with Great West Life Assurance Company, the disability insurance carrier for Intercall. Mr. Roblin had recommended and designed the graduated return to work program for the applicant and was charged with co-ordinating its implementation.

7On June 5, 2007, the applicant met with Ms. Bellward and the personal respondent Jason Foss, Director of Direct Sales for Intercall, to further discuss his return to work and the duties and responsibilities of his position. During the applicant's medical leave of absence, changes had taken place in the organization and modifications had been made to the applicant's position.

8When the applicant arrived at Intercall's office for the meeting, Ms. Bellward was waiting for him in the reception area. She suggested that they go downstairs to the coffee shop for a coffee and that Mr. Foss would join them.

9According to the applicant, it was during this meeting in the coffee shop that Ms. Bellward told him that he would no longer fit in as part of the sales team and that all the sales persons that he had worked with prior to his leave had quit and that he should do the same. Allegedly, she also stated that Intercall did not want people who spoke with an accent. The applicant describes his accent as Irish.

10The applicant claims that when Mr. Foss arrived he was very aggressive. According to the applicant, Mr. Foss told him that he was not interested in a gradual back to work program, that if the applicant failed to do the job the way that he wanted it done that the applicant would be fired, that he had no patience for people with disabilities or long illnesses and that he would fire the applicant the first time the applicant made a mistake. The applicant alleges that Mr. Foss pretended not to understand his Irish accent and that Mr. Foss told him that he had Canadian sales people in mind for the applicant's job.

11According to the applicant, on the understanding that Intercall was not supportive of a graduated return to work and fearing for his job, he opted to return to work on a full time basis in early July 2007, forsaking the graduated return to work program. At the end of July, 2007, the applicant took leave from his employment for medical reasons.

ANALYSIS

12There are two issues which I must consider: (1) Does the evidence establish that the respondents failed to accommodate the applicant in his return to work with a graduated return to work program? (2) Does the evidence establish that the respondents' conduct at the June 5, 2007 meeting amounted to discrimination against the applicant on the basis of disability or place of origin?

Graduated Return to Work Program

13The evidence establishes that Ms. Bellward and Mr. Roblin worked diligently together to craft a graduated return to work program for the applicant. A myriad of e-mail exchanges between them and a final draft of the return to work program attest to this. That the applicant was aware of the plan and was content with it is not disputed. I find that there was a bona fide graduated return to work program in place for the applicant which would have been implemented but for the applicant's decision to immediately return to work on a full time basis.

Meeting in the Coffee Shop

14There were no witnesses to the June 5, 2007 meeting that the applicant, Ms. Bellward and ultimately Mr. Foss had in the coffee shop. Ms. Bellwood and Mr. Foss deny making the impugned remarks attributed to them by the applicant. In essence it is a question of credibility.

15Ms. Bellward testified in a direct and straightforward manner, without embellishment and her evidence was internally consistent. I note that Ms. Bellward has not worked for the corporate respondent since November 2008 when the corporate respondent closed the regional office where she was employed.

16The applicant, on the other hand, was often evasive, at times embellished and in many important respects his evidence was inconsistent. For example, in his evidence in chief the applicant stated that Mr. Foss threatened to fire him the first time he made a mistake. In cross-examination, he claimed that Mr. Foss threatened to fire him if he exercised his right to a graduated return to work. By way of further example, the applicant testified that the morning following the June 5 meeting he called Mr. Roblin to report on the meeting at which time Mr. Roblin allegedly expressed his dismay that the meeting was held in a coffee shop. However, an e-mail from Mr. Roblin to Ms. Bellwood dated June 7 reads: "Excellent. I haven't heard from Colm, so I'm assuming all went well. I look forward to receiving your report and schedule. Thanks for keeping me in the communication loop." Given this e-mail, one is left to conclude that the applicant did not contact Mr. Roblin the morning following the meeting and consequently there was no expression of dismay by Mr. Roblin that the meeting was held in the coffee shop.

17On the whole I prefer the evidence of Ms. Bellward. Based on her evidence, I accept that she met with the applicant in the coffee shop on June 5 and discussed with him the graduated return to work plan and that on joining the meeting Mr. Foss addressed the changes in the applicant's position. On the basis of her evidence I am satisfied that she did not suggest that he would not fit into the organization, that she did not suggest that he should quit and that she did not suggest that his accent was a problem. In addition, on the basis of the evidence of Ms. Bellward, I am satisfied that Mr. Foss did not threaten to fire the applicant under any pretext and did not disparage or otherwise take umbrage with his accent. I accept Ms. Bellward's evidence that Mr. Foss did not address, in any manner, the graduated return to work program and that Mr. Foss' discussion with the applicant was with respect to recent changes in the applicant's position only.

18The applicant maintains that the respondents prohibited Mr. Roblin from attending the June 5 meeting which put the applicant at a disadvantage. It would have been helpful had the applicant called Mr. Roblin as a witness to speak to this issue; however, he did not. Based on the evidence before me it would appear that Mr. Roblin was not excluded from the meeting but rather he decided it was not necessary for him to attend.

19The applicant took exception to having the June 5 meeting in a coffee shop. He acknowledges that he did not convey his misgiving to any to the respondents. Nevertheless, he expressed his feeling of discomfort in meeting in a public place. Ms. Bellward, on the other hand, thought the applicant would be more comfortable in a less formal setting. Be that as it may, even if I were to conclude that meeting in the coffee shop was a bad idea, no evidence was presented to show how meeting in the coffee shop amounted to differential treatment or a breach of the Code.

20In my view, the evidence does not establish that the respondents' conduct at the June 5, 2007 meeting amounted to discrimination on the basis of disability or place of origin.

ORDER

21For all these reasons the Application is dismissed. It will not be necessary to hear from the parties on remedy.