MacNeil v. LOFT Community Services, 2010 HRTO 1561

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Allan MacNeil

Applicant

-and-

LOFT Community Services

Respondent

DECISION

Adjudicator: Jay Sengupta

Date: July 19, 2010

Citation: 2010 HRTO 1561

Indexed as: MacNeil v. LOFT Community Services

APPEARANCES

Allan MacNeil, Applicant ) On his own behalf

LOFT Community Services, Respondent ) E. C. Carla Zabek, Counsel

1This is an Application filed on June 22, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) alleging discrimination in respect of employment on the basis of disability and age. The Application, as originally filed, alleged discrimination on the basis of disability alone and named a personal respondent, Tony Crosbie, the applicant’s former supervisor, along with the organizational respondent.

2By way of an Interim Decision, 2010 HRTO 925, the Tribunal granted the applicant’s request to amend his Application by adding age as a ground of discrimination. In the same decision the respondents’ request to remove the personal respondent as a party was granted.

3A hearing into this Application was held on June 28, 2010. Following the conclusion of the applicant’s evidence, the respondent moved to dismiss the Application.

4The parties provided submissions on the respondent’s request for dismissal on the basis that the applicant had failed to make out a prima facie case.

5Following the submissions, I made an oral ruling dismissing the Application and indicated written reasons would follow. The reasons for dismissal are set out below.

Facts

6The applicant is employed by the respondent organization and continues to work there as a Case Manager. The respondent is a non profit organization that provides permanent housing, community outreach and supportive housing services to vulnerable and homeless individuals with mental health, addiction and other challenges in the community. The applicant’s role in the organization is primarily the provision of service to individual clients.

7The applicant suffered a workplace injury in January 2008. Later that year, for reasons related to the workplace injury, the applicant took some time off work. He was away for medical reasons from August 25, 2008 to November 11, 2008, when he returned initially on a part time basis and then full time.

8The applicant alleges that, as a result of his disability related leave, he was prevented from applying for the job vacated by his then immediate supervisor, Tony Crosbie. Although he amended his Application to include age as a ground, neither the Application nor the Request for Order seeking the amendment contained any allegations that relate to this ground.

9The applicant’s doctor wrote a note for the applicant, dated October 23, 2008, indicating the he was able to return to work.

10The applicant met with Tony Crosbie, his supervisor at the time, on October 23, 2008, to provide the note and to discuss his return to work plans. At that time, the applicant says he and Tony Crosbie discussed the latter’s plans to leave his current job to move to another position within the organization. The applicant also says that Mr. Crosbie told him that no one had applied for the position.

11The applicant says that he was told to go meet with a person in the human resources department who then told him that Tony Crosbie was writing a letter to his doctor. In that letter, Mr. Crosbie, on behalf of LOFT Community Services, outlined the applicant’s job functions and asked the applicant’s doctor whether he was medically able to perform the specific tasks outlined and whether any accommodation would be necessary. The applicant’s doctor responded by way of letter on November 4, 2008.

12The applicant states that during the meetings with Tony Crosbie, he felt marginalized by him. In his view, Mr. Crosbie put hurdles in his path, set meaningless tasks for him to complete in order to return to work and lessened his opportunity to apply for the job. He says Tony Crosbie had told everyone else in the organization that he was leaving a few weeks prior by leaving messages on everyone else’s office voicemail. He believes he did not receive equal treatment because he was not at work at the time and that he was prevented from applying for the job because Tony Crosbie left earlier than anticipated and before the applicant had returned to work.

13The applicant’s evidence is that during the medical leave, which ran from August through to November 2008, he was told that he did not need to report or call in to work every day during his medical leave. He says that he interpreted that to mean that he should not call the office and that he should not check his voice mail for messages. He admitted that he did have access to his voice mail at work.

14Further, the applicant says that he did not know that the deadline for applying for the position was October 23, 2008. When questioned, he admits that he did not ask about the deadline or express any interest in the position when he met with Tony Crosbie or the human resources representative. It was, he said, his intention to return to work and then apply for the job.

15His evidence was that it was only later in early November when he received a voice mail message from Mr. Crosbie that he discovered that his supervisor would be leaving in early November rather than late November, that the 23rd of October had been the deadline for application and that the position had been filled before he had a chance to indicate his interest in the position by applying for it. It appears he found out this information in early November.

Analysis:

16It is well-established in human rights law that the onus is on an applicant to establish a prima facie case of discrimination. In Ontario (Human Rights Commission) v. Simpsons-Sears, [1985] 2 S.C.R. 536, 1985 CanLII 18 (S.C.C.), at para. 28, a prima facie case was described as one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant’s favour in the absence of an answer from the respondent.

17Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory. As the adjudicator in Jagait v. IN TECH Risk Management, 2009 HRTO 779 stated, “where the applicant has failed to establish a prima facie case, it is neither legally correct nor fair, just and expeditious to shift the burden to the respondent to provide a non-discriminatory reason for its actions”.

18In the case at hand, I am not satisfied, after hearing the applicant’s evidence, that he has established a prima facie case of discrimination.

19It is apparent that a message was left on the applicant’s voice mail just as it was on the voice mails of all other staff members. While the applicant was told that it was not necessary for him to report in to work every day while he was on his disability related leave, there is nothing to suggest that he was told not to check his voice mail, to which he admits he had access during his medical leave.

20Further, it is clear that during the conversation with Mr. Crosbie on October 23, 2008, he became aware that the job had been advertised and that the application process was ongoing, given his own description of what transpired in the meeting.

21The applicant’s evidence was that he intended to return to work, settle in and then apply for the job being vacated by Mr. Crosbie. There is nothing before me that suggests that being back at work before applying for the job was a pre-condition to application or that it was a barrier suggested or imposed by the respondent on the applicant. It appears to be a pre-condition that the applicant imposed on himself.

22Indeed, if it was the applicant’s intention to apply for the position, he had an opportunity while he was in the respondent’s offices on October 23, 2008 to seek additional information about the advertisement by checking his voice mail or discussing the matter during his meetings with Tony Crosbie and the human resources representative. He did none of those things.

23It is also clear from his evidence that he did not make any inquiries about the job between the October 23, 2008 meetings and when he received the voice mail message from Mr. Crosbie in early November, nor did he submit an application for the job during that period.

24In conclusion, I find that the evidence of the applicant is not complete and sufficient to justify a finding in the applicant’s favour. His evidence does not establish a prima facie case of discrimination under the Code. I am also satisfied that this is not a case where it is unfair to arrive at this assessment in the absence of any evidence from the respondent.

25The Application is dismissed.