HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rafaele Lastella
Applicant
-and-
Oakville Hydro Corporation, Dan Steele and Marcia Best
Respondents
Interim DECISION
Adjudicator: David Muir
Indexed as: Lastella v. Oakville Hydro Corporation
WRITTEN SUBMISSIONS BY
Rafaele Lastella , Applicant ) John Evans, Counsel
Oakville Hydro Corporation, Dan Steele )
and Marcia Best, Respondents ) Peter J. Thorup, Counsel
1This is an Application filed September 29th, 2008 under section 53(3) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2Mr. Lastella (the “applicant”) alleged in the complaint filed with the Human Rights Commission in June 2007 (the “complaint”) that his right to equal treatment in employment was violated by Oakville Hydro Corporation, Dan Steele and Marcia Best (the “respondents”) when his employment was terminated in early 2007. This Interim Decision deals with a preliminary dispute about the scope of the complaint and the respondents’ Response.
3The respondents take the position that the applicant has attempted to expand the subject matter of the complaint contrary to section 6.3 of the Rules of Procedure for Transitional Applications (the “Transitional Rules”). For his part the applicant takes the position that a purported amendment of the respondents’ Response is an improper attempt to expand the response filed with the Commission contrary to the Rule 7. I will deal with these issues in turn although there is some overlap between them. I will then deal with some other matters with a view to expediting the hearing process.
The Complaint
4In his complaint the applicant alleged generally that his right to equal treatment in employment without discrimination on the basis of disability was infringed by the respondents and that the respondents failed in their obligation to accommodate his disability contrary to section 5 and 17(2) of the Code. The particulars provided in the complaint are paraphrased below:
In May 2001, the applicant commenced employment with the corporate respondent in the position of SCADA Protection and Control.
On January 2, 2007, the applicant alleges that he worked his regular day and at the end of the day left work as scheduled. On January 3, the applicant alleges he emailed his superior to advise that he was taking a vacation day. This was common practice in the applicant’s experience. The applicant also indicated to his supervisor that he was not felling well.
On January 3, 2007, the applicant alleges that he attempted to log on to the respondent corporation’s email but was locked out.
On January 4, 2007, the applicant alleges that he attended his doctor’s office at 9:00 a.m. but because he had no appointment he was required to wait. At approximately 1:30 p.m., he saw his physician who diagnosed stress and depression. The doctor prescribed Lorazapan and wrote a note for the corporate respondent indicating that the applicant should be off work for four weeks. The applicant alleges that when he got home he immediately emailed the employer and attempted to provide them with the information necessary for them while he was absent from work.
On January 5, 2007, the applicant received an email from the corporate respondent indicating that he had been terminated and acknowledging receipt of the doctor’s note.
The applicant also stated that he had attempted to provide them with the SCADA password but that the respondents had not provided him with the information he needed in order to comply with their requests.
The applicant alleges that prior to his termination there were no serious performance criticisms and no indication that his job was in jeopardy.
The applicant stated that the termination of his employment was based on the fact that he suffered from a disability that required him to have four consecutive weeks off work. It is further stated that he particularly believed this as, in the past, he had always been required to put his vacation and personal needs on hold in order to be available to the Respondent 24/7.
5In correspondence delivered and filed on or about January 5, 2009, the applicant provided the following additional facts in support of his claim for relief:
The applicant asserts that he was subjected to unfair and inappropriate treatment by Steele since Steele became responsible for the Department in November 2004. It is further asserted that Steele starting in the summer of 2006 increased his mistreatment of the applicant.
The applicant asserts that his disability in whole or in part was caused by his mistreatment by Steele.
The applicant asserts that post termination conduct constitutes further violations of the Code which should be taken into account by the Tribunal.
Steele was involved in, condoned, counselled or had knowledge that two employees of the respondent corporation caused a false application form to be filed in the name of the Applicant at a Tim Horton’s location on January 5, 2006. Such conduct was intended to case further humiliation and upset to the applicant and evidences a motive to disregard the rights of the applicant and constitutes a further violation of the Code.
The applicant undertook various educational courses to further enhance his ability to perform services for the corporate respondent. The applicant alleges that he was not compensated for the courses taken in violation of employer policy.
The applicant sought sick leave benefits and was effectively denied compensation for over a year.
The applicant asserts that the Independent Medical Evaluation (IME) performed on behalf of the respondent corporation establishes that the applicant was disabled as of the summer of 2006 due to his mistreatment by Steele. The applicant further asserts that the respondents ignored or refused to consider relevant medical information provided before the termination was affected.
The applicant further alleges that the respondents failed to properly or fairly investigate the allegations set out in the termination letter. The applicant alleges that these false allegations in the termination letter were made to bolster the respondents’ defence.
6The applicant also sought to rely upon a number of allegations set out in a schedule to the January 5, 2009 letter. The schedule appears to be a narrative prepared by the applicant describes, by reference to a number of workplace events beginning in November 2004, what he characterized as the ”poisoned” work environment created by Mr. Steele. The schedule describes a difficult working relationship and is relied upon as “background to the termination”. Significantly the applicant does not allege that the respondents knew or ought to have known he was a person with a disability at any point prior to the events of January 2007.
The Response
7The initial response filed with the Commission in October 2007 alleges performance issues beginning shortly after the applicant was hired in 2001. Much of the response is devoted to documenting alleged poor performance, misconduct and alleged unwillingness to take direction. The bulk of these events are alleged to have occurred in 2006. These allegations are in response to the assertion in the complaint that there were no performance issues identified prior to January 5, 2007. As well the response includes allegations of alleged misconduct coming to the attention of the respondents after the applicant’s termination, which the respondents state would have supported the termination of the applicant well prior to January 5, 2007 had they been known to the respondents.
8On October 28, 2008, the respondents filed correspondence purporting to amend the response in which they stated that the decision to terminate the applicant’s employment was made in the summer of 2006, several months prior to the termination on or about January 5, 2007.
9By way of further background the parties are agreed the applicant was a person with a disability when he was terminated. The respondents do not agree, as alleged by the applicant, that he was a person with a disability at any point prior to the events outlined in the complaint beginning on January 2, 2007.
10The respondents’ Request for an Order that these additional or new allegations not be entertained by the Tribunal is opposed by the applicant. The applicant states that the further particulars provided on January 5 and 7, are just that, particulars of the complaint. The applicant also states that Rule 6.3 must be interpreted in light of Rule 1.1 which provides that the Rules be interpreted liberally and applied by the Tribunal to facilitate an accessible process and to ensure a fair, just and highly expeditious process for the determination of section 53(3) applications. Expeditiousness must not come at the expense of fairness and justice. In the applicant’s submission, Rule 6.3 has no application because the applicant has not made a preliminary request to expand the complaint; rather the respondents are seeking to limit the scope of the complaint by this preliminary Request. The applicant also states the these new allegations provide background and context to the dispute.
What is the proper subject matter of the Complaint?
11The legislative intention as set out in the transition provisions is that section 53(3) applications should be dealt with in a highly expeditious manner. To that end, the Tribunal developed Rules to foster a fair, just and highly expeditious process. In particular Rule 6.3 states:
- 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 add grounds, expand the subject matter of the complaint or add parties to the Application. (emphasis added)
12The essence of the complaint is the allegation the applicant was terminated by his employer because he was in need of four weeks off work to address a medical issue. There is no suggestion in the complaint that the disability was caused by the conduct of the respondents or that Mr. Steele had mistreated the applicant for a number of years creating a poisoned work environment. There is no suggestion in the complaint that the disability pre-dates the events of January 2007 or that the respondents ought to have been aware of it.
13To the extent that the additional facts or allegations contained in the January 5 and 7 correspondence and attached material expand the scope of the complaint to include allegations that the work environment was poisoned by the inappropriate and unfair treatment of the applicant by Mr. Steele and this treatment resulted in a disability, Rule 6.3 prevents such an expansion. However, as the applicant points out, he is entitled to challenge the bone fides of the respondents’ decision to terminate him. The response includes allegations of performance issues going back several years prior to January 2007. The applicant is entitled to challenge those allegations and to the extent that the respondents’ decision might be said to have been made in bad faith or was simply irrational, it is open to the applicant to ask that an inference be drawn that the decision was informed to some degree by his disability.
14To be clear, this is not a wrongful dismissal case and it is by and large irrelevant whether or not there was just cause for the termination. Rather, the human rights question that arises is whether or not a factor in the decision to terminate the applicant’s employment on January 5, 2007 was that he was, or was perceived to be, a person with a disability who required four weeks off work to attend to his medical issues. In answering that question it does not matter from a human rights perspective if the respondent Steele was a terrible manager as alleged by the applicant or even that he mistreated him. Equally, the causes of the applicant’s disability are not relevant to the question raised by the complaint, nor is the question of when he began to experience the disability given that the respondent has agreed that on January 5,2007 he was a person with a disability.
15In my view, it would significantly detract from the expeditious nature of the proceeding to entertain the applicant’s allegations respecting Mr. Steele’s performance as a manager and the causes of his disability. The applicant states that it is all merely background and is not intended to expand the scope of the complaint. As indicated above, as background much of it will be irrelevant to the issues identified in the complaint and will I find add significantly to the hearing time required to deal with this Application.
16Accordingly, except to the extent that the new allegations described in paragraphs 6 (a), (b), (c) and 7 above are responsive to allegations of poor performance relied upon by the respondents to support their decision, they are not properly part of this Application and are irrelevant to any issue in dispute. Obviously which of the multitude of allegations made by the applicant is captured by this determination will be difficult to set out precisely before hearing the evidence of the respondents. I will canvass the implications of this below.
Is the Amendment to the Response Improper?
17The applicant states that Rule 7 does not allow the respondents to file an amended response where it is alleged the amendment fundamentally alters the nature of the defence offered to the complaint.
18I do not agree. There is nothing in the language of Rule 7 which would prevent a respondent from alleging new or different facts in response to the complaint and Application. Clearly different considerations apply as between respondents and applicants seeking to change their position. The applicant determines whether to proceed under section 53(3) or 53(5). As indicated above the legislative intent was that applications under section 53(3) be dealt with in a highly expeditious manner and that Rules be developed for these cases accordingly. It is for this reason that the Rules seek to confine the scope of the hearing to the allegations and issues arising from the complaint as filed with the Commission or as amended while in the carriage of the Commission.
19Of course the usual rules of fairness prevail and if the amendment was made so late in the day that the applicant is unable to reply to the new response it is possible the response might be rejected. This is not the case here and although the new allegations of the respondents may well give rise to questions at the hearing, the respondents are not prevented by the Rules from altering or amending their response to the complaint.
Other matters
20The applicant has raised a concern about the respondents’ claim of privilege over a surveillance investigation report identified in correspondence from counsel for the respondents, dated March 25, 2009. The applicant seeks the production of this document. The respondents have stated that they will not waive the privilege they claim over this material, however they are prepared to produce it to me to review.
21I find that to expedite the hearing of this Application it would be appropriate to hear the parties’ submissions on this production request at the resumption of the Case Resolution Conference.
22The respondents had at one point sought direction from the Tribunal that they lead their evidence first respecting the allegations made in the October 2008 revisions to their response – that they had decided to terminate the applicant in the summer of 2006 long before the events of January 2007. Neither party has addressed this issue further.
23The Tribunal has in the appropriate case directed that the respondents lead their evidence first where it appears the most expeditious, just and fair procedure for determining the merits of the Applications. See: Boukart v. Securitas Canada, 2009 HRTO 890. In a termination case the reasons for the decision to terminate and the timing of the termination decision are normally matters that are only known by the employer. Without shifting the ultimate evidentiary burden, employers are often called on in employment law disputes to lead their evidence first for that reason. Also, as noted above in the discussion of the scope of the complaint, it will be difficult to determine what evidence the applicant might be required to lead in challenging the bone fides of the decision to terminate him until that evidence has been heard.
24Accordingly, I will entertain the parties’ submissions with respect to the suggestion that the respondents lead their evidence first in support of their decision to terminate the applicant’s employment including both the allegation that the decision was made in the summer of 2006 and the actual January 5, 2007 termination.
ORDER
25The Tribunal makes the following Order:
The parties will be prepared to make submissions on the order of calling evidence, what evidence will be called and the production issue canvassed above in addition to any other issues raised by the parties themselves, when the Case Resolution Conference resumes on July 22, 2009.
Dated at Toronto, this 30th day of June, 2009.
“Signed by”
David Muir
Vice-chair```