Kam Chong Li v. Novopharm Limited, 2009 HRTO 885

Human Rights Tribunal of Ontario

B E T W E E N:

Kam Chong Li Applicant

-and-

Novopharm Limited, Gail Lucyk, Halima Khan and Lee Reich Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Mark Hart Date: June 19, 2009 Citation: 2009 HRTO 885 Indexed As: Li v. Novopharm

APPEARANCES BY

Kam Chong Li, Applicant ) On his own behalf

Novopharm Limited, Gail Lucyk ) Angela Rae, Counsel and Halima Khan, respondents )

Lee Reich, respondent ) Did not appear

1This is an Application made under s. 53(3) of the Ontario Human Rights Code, dated October 31, 2008. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on January 13, 2007.

2The Case Resolution Conference (“CRC” or “hearing”) in this matter was held on May 13 and 14, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53(3) applications proceed in a highly expeditious manner. I took the lead in questioning the witnesses and heard from the applicant, two of the personal respondents and two additional witnesses. The applicant was assisted throughout the hearing by an interpreter. The parties were afforded an opportunity to cross-examine opposing witnesses after I had completed my questioning of all witnesses. The personal respondent Lee Reich did not appear at the hearing and was not represented by counsel for the other respondents.

The Allegations

3I commenced the process by clarifying with the parties the issues raised by the applicant in his underlying complaint as filed with the Commission, as follows:

1. The applicant alleges that, during the period from October 2002 to February 2003, he received four warning letters and was forced back to full duties to drive a fork lift truck while he was still suffering from pain after he alleges that he was injured at work in July 2002, which is alleged to have been beyond his physical ability. The applicant alleges that this amounts to discrimination because of disability. The applicant further alleges that he was forced to pay back monies paid to him by the respondent company for times when he attended treatment during work hours and was required to claim reimbursement through the Workplace Safety and Insurance Board (“WSIB”) and that the respondent company tried to force him to relocate to a position at another site which he alleges threatened his job security and was beyond his physical limitations.

2. The applicant alleges that on June 10, 2004, he was permanently downgraded from his position as a material handler (grade 3) to shipper (grade 2) and that this resulted in a loss of wages, which he alleges amounts to discrimination because of disability.

3. The applicant alleges that certain actions were undertaken by the lead hand and supervisor during the period from May 2005 to October 2006 to push him to perform at a higher level without consideration of his injury, which he alleges constitutes discrimination because of disability.

4. The applicant alleges that he further experienced discrimination because of disability in relation to a warning letter dated October 12, 2006 that he received relating to an incident that occurred on October 11, 2006, on the basis that the underlying incident was part of an alleged pattern of discrimination by the lead hand.

5. The applicant alleges that he experienced reprisal for raising issues under the Code as a result of a warning letter dated November 20, 2006 that he received after he had raised allegations of discrimination and harassment internally at the respondent company.

6. The applicant alleges that he experienced discrimination because of family status as a result of the respondent company’s policy of not allowing cell phone use, which the applicant states is required in order for him to be able to be contacted by his mother.

4In this Decision, I will address each of these allegations in turn.

Additional Allegations

5In material filed by the applicant with the Tribunal, he raised certain additional allegations that did not form part of the allegations as set out in the complaint he filed with the Commission. The respondents objected to the Tribunal’s consideration of these allegations as being beyond the scope of the complaint. After hearing submissions from the parties on this issue, I delivered the following oral decision:

1. Rule 6.3 of the Tribunal’s Transitional Rules states in its relevant part that “Applications made in accordance with these Rules must be based on the subject matter of the complaint or amended complaint filed at the Commission and the Tribunal will not entertain preliminary requests to . . . expand the subject matter of the complaint.

2. In his materials filed with the Tribunal, the applicant has raised an issue regarding allegations that starting from 2004, the respondent company refused internal posting applications 7 times and that the applicant missed 8 internal warehouse opportunities which were not posted. The applicant also has raised a specific allegation relating to the positions of “Inventory & System Coordinator” and “Traffic Coordinator” which are alleged to have been refused after he received the November 2006 letter and after he filed his human rights complaint.

3. The applicant also has filed with the Tribunal a document that is entitled “Continued Discrimination, Harassment and Reprisal” that raises the reprisal allegation in relation to job opportunities and also references certain other incidents from 2007 which occurred after the date of the complaint underlying this application.

4. The applicant states that while his complaint was still in the Commission’s process, he raised his reprisal allegations with the Commission and provided them with the document that has been filed with the Tribunal either before or after