HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rodger Watson
Applicant
-and-
T. Boudreau Construction Inc. o/a Courtice Roofing
Respondent
DECISION
Adjudicator: Brian Sheehan
Indexed as: Watson v. T. Boudreau Construction
AppearanceS BY
Rodger Watson, Applicant ) Self-represented
T. Boudreau Construction Inc. ) Valentine Lovekin, o/a Courtice Roofing, Respondent ) Counsel
1This is an Application filed on May 5, 2009 under Section 53(5) of Part IV of the Human Rights Code R.S.O. 1990 as amended (the “Code”). The Application asserts that the applicant had been discriminated in employment on account of a disability by the respondent. It was further asserted that certain acts of the respondent constituted a reprisal against the applicant.
2A hearing took place on December 9, 2009. At the outset the parties were advised that the hearing would be conducted in an expeditious manner pursuant to the expectations expressed in the Code and the Tribunal's Rules of Procedure.
Review of the Evidence
3The central facts associated with this matter were generally not in dispute. The corporate respondent is a roofing company. The owner of the respondent is Mr. Travis Boudreau.
4The applicant was hired in April 2006 and worked as part of a crew of roofers as a shingler. Sometime shortly after he was hired, there was a dispute between the applicant and a fellow employee regarding the purported failure of that employee to give back to the applicant a chalk line that he had borrowed. The evidence suggests that subsequently certain of the applicant's co-workers, not pleased that the applicant had raised the dispute regarding the chalk line with Mr. Boudreau, started to refer to him as a “rat”. Additionally, it is accepted that those co-workers started to make his work experience difficult.
5On May 24, 2006, the applicant suffered a workplace accident when he inadvertently shot a roofing nail into his right thumb/wrist area. The applicant went off work due to that injury and received loss of earnings benefits under the Workplace Safety Insurance Act, 1997, S.O. 1997, c.16, Sched. A, as amended.
6As of June 14, 2006, the applicant indicated that he was ready to return to work on a modified basis. Initially Mr. Boudreau, on behalf of the respondent, expressed a hesitancy to re-employ the applicant since three labourers had just been hired to perform the type of work that the applicant would potentially perform as light duties. With the assistance of a Claims Adjudicator with the Workplace Safety Insurance Board, the parties were able to resolve that issue and the applicant returned to work on a modified basis.
7It was the applicant’s evidence that once he returned to work, on June 20, 2006, he was subjected to renewed taunting, and mean spirited pranks performed at his expense by his co-workers. During the next day, June 21, 2006, the taunting of the applicant escalated into threats of physical violence against him. The applicant testified that at one worksite a noose was placed on a tree and it was suggested that it was prepared for him.
8The applicant subsequently contacted his father for advice about the situation. His father in turn contacted the WSIB Claims Adjudicator who contacted Mr. Boudreau. The evidence suggested that Mr. Boudreau proceeded to contact the applicant’s immediate supervisor and advised that supervisor to make sure that the applicant's co-workers stopped harassing the applicant. It was the applicant’s evidence that the supervisor in fact did nothing to stop the continuing threatening behaviour of his co-workers. Mr. Boudreau ultimately appeared at the job-site during the lunch break and advised the co-workers involved to stop their harassment of the applicant.
9The applicant, however, decided he could no longer tolerate the behaviour of his co-workers and left the job-site during the lunch break. He proceeded to report the physical threats he had received to Durham Regional Police. A police officer subsequently phoned the co-worker who had been making the physical threats and apparently that co-worker apologized for his behaviour.
10On the evening of June 21, 2006, Mr. Boudreau contacted the applicant seeking to assure him that the harassing behaviour of his co-workers would cease. In that phone conversation the applicant suggested he would return to work the following day. In fact, however, the applicant never returned to work with the respondent.
Decision
11The evidence clearly suggests that the applicant was subjected to behaviour by his co-workers that was harassing in nature. Moreover, that behaviour ventured into specific physical threats against his well-being. The applicant's decision not to continue to work in that hostile work environment, notwithstanding the assurances of Mr. Boudreau, was at that one level understandable.
12The evidence, however, also clearly suggests that the harassing the applicant experienced at the hands of his co-workers was not connected to any of the prohibited grounds of discrimination set out under section 5(1) or 5(2) of the Code. In particular, the behaviour of those co-workers was not related to the applicant's injury or to the fact he had filed a WSIB claim; but to their view of him arising out of his reporting the chalk line incident to Mr. Boudreau.
13The Tribunal additionally finds no basis to suggest that the actions of the respondent constituted a reprisal against the applicant in connection with his claim for WSIB benefits. While there was an initial hesitancy on the part of the respondent to re-employ the applicant after his injury, the Tribunal finds that Mr. Boudreau did genuinely seek to accommodate the applicant with respect to that injury. Moreover, Mr. Boudreau endeavoured to put an end to the harassing behaviour the applicant was subjected to by his co-workers.
14The Tribunal does not have over arching jurisdiction to the regulate employment relations or inappropriate behaviour by employees towards a co-worker at a particular worksite. The Tribunal commented on the limitation on its jurisdiction in Packman–Wallace v. Subway Store #14207, 2009 HRTO 729 as follows:
[2] (… ) In the Application, the applicant refers to a hostile work environment and verbal harassment by her manager. She states that she has been yelled at, berated and intimidated over issues in the workplace. She describes being accused of poor work performance, and being criticized and humiliated in front of staff and customers.
[3] The Tribunal does not have a general power to inquire into claims of unfair treatment in employment. Its jurisdiction is based on the Code which prohibits termination in employment on the basis of race, ancestry, place of origin, color, ethnic origin, citizenship, creed, sexual orientation, age, record of offences, marital status, family status or disability. Section 8 of the Code, which prohibits reprisals or threats of reprisal states:
Every person has a right to a claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right or of another person under this Act, without a reprisal or threat of reprisal.
[4] The applicant does not allege that the respondents’ behaviour was a response to any of the following:
Claiming or enforcing a right under the Code;
Instituting or participating in proceedings under the Code; or
Refusing to infringe the rights of another person.
[5] Moreover the applicant has identified no other ground of discrimination or basis upon which she alleges that the Code was violated.
15In this case, failing to find any act or omission by the respondent connected to one of the grounds of discrimination under section 5 of the Code or that section 8 of the Code had been triggered there is no basis for the Tribunal to reach the conclusion that the Code was violated.
16For the above reasons, the Application is dismissed.
Dated at Toronto, this 19th day of January, 2010.
“Signed by”