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Donato Gentile v. City of Toronto, 2010 HRTO 1378 — HRTO | minicounsel | minicounsel

June 18, 2010

Donato Gentile v. City of Toronto, 2010 HRTO 1378

Case Summary

The applicant alleged discrimination on the basis of disability after the respondent failed to provide sick pay during a lawful strike. The respondent argued that the collective agreement was not in effect during the strike and no employees were entitled to wages or sick pay, meaning there was no differential treatment. The Tribunal issued an interim decision directing the applicant to file written submissions explaining how the Application discloses a prima facie case of discrimination under the Code.

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donato Gentile

Applicant

-and-

City of Toronto

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: June 18, 2010

Citation: 2010 HRTO 1378

Indexed as: Gentile v. Toronto (City)

[1] In this Application, filed pursuant to s. 34 of the Ontario Human Rights Code, R.S.O. c. H.19, as amended (“the Code”), the applicant alleges that he was discriminated against by the respondent on the basis of disability in respect of employment. Specifically, the applicant complains that he did not receive sick pay from June 22 to July 30, 2009, during a lawful strike by unionized employees of the respondent.

[2] The respondent submits that even assuming all of the facts alleged in the Application to be true, the applicant does not make out a prima facie case of discrimination under the Code. The respondent also submits that it is plain and obvious that the Application does not disclose a breach of the Code and that the Application may be dismissed even in the absence of oral submissions by the parties because it does not raise an issue within the Tribunal’s jurisdiction to decide (s. 43(2)).

[3] The respondent submits that for the duration of the lawful strike by its employees, and pursuant to the provisions of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, the collective agreement, pursuant to which it was contractually obliged to provide employees including the applicant with regular and sick pay, was not in effect. The respondent submits that during the strike, no employees were entitled to be paid wages or sick pay. It submits that it did not single the applicant out for differential treatment in any way and that there is no basis upon which the Tribunal could conclude that the respondent’s failure to provide sick pay to the applicant constituted discrimination on the basis of his disability.

[4] The respondent raises an important issue about whether the Application makes out a prima facie case of discrimination under the Code.

[5] The applicant has not filed a Reply responding to the respondent’s submissions in this regard and so his position on this issue is not clear.

[6] The applicant is hereby directed to file written submissions on whether his Application discloses a prima facie case of discrimination under the Code. Put another way, the applicant is directed to explain, in writing, how the respondent’s failure to pay him sick pay at a time when the collective agreement was not in effect and no employees were entitled to be paid wages or sick pay constituted differential treatment of the applicant on the basis of disability.

[7] The applicant should deliver his submissions to the respondent and file them with the Tribunal within 14 days of the date of this Interim Decision.

[8] If the applicant fails to provide the submissions as directed above, the Tribunal may conclude that the applicant has abandoned his Application and dismiss it accordingly.

[9] I am not seized.

Dated at Toronto, this 18^th day of June, 2010.

“Signed by”

Sheri D. Price

Vice-chair