Donato Gentile v. City of Toronto, 2010 HRTO 2172

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donato Gentile

Applicant

-and-

City of Toronto

Respondent

DECISION

Adjudicator: Sheri D. Price

Date: November 2, 2010

Citation: 2010 HRTO 2172

Indexed as: Gentile v. Toronto (City)

Appearances

)

Donato Gentile, Applicant ) Self and Lucy Gentile, Representative

)

)

City of Toronto, Respondent ) Kerri Kitchura, Counsel

)

)

CUPE, Local 416 ) Risa Pancer, Counsel

)

INTRODUCTION

1In 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.

2The respondent submits that for the duration of the lawful strike by its employees, 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.

3A teleconference hearing was convened to afford the parties an opportunity to make oral submissions regarding whether, assuming the facts asserted by the applicant to be true, the Application made out a prima facie case of discrimination under the Code. The applicant, the respondent and the applicant’s trade union, which has filed a Request to Intervene in this matter, all participated in the teleconference hearing.

BACKGROUND

4The applicant worked as a lead hand with the respondent, in which role he was responsible for overseeing certain operations at one of the respondent’s recreational centres, among other things.

5The applicant alleges that he took June 11, 2009 off work for a medical appointment, at which appointment it was determined that the applicant would undergo surgery on July 10, 2009. The applicant returned to work as scheduled on June 12, 2009. The applicant alleges that he told his supervisor that his surgery was scheduled for July 10, 2009 and that he intended to go off work in advance of the surgery. The applicant alleges that his supervisor “encouraged” him to stay on for a few days, until June 19, 2009, because the applicant was the only one who could assist the respondent in the seasonal opening of the centre’s swimming pool on June 20, 2009. The applicant alleges that his supervisor acknowledged that the applicant “could not do too much” and offered to provide the applicant with the help he required in order to stay on. Specifically, the applicant alleges that he was assigned a “helper” eight hours a day who did all of the manual work while the applicant oversaw the work that was being done, in order to make sure that it was done properly.

6The applicant alleges that, out of a sense of loyalty to the respondent, he agreed to continue working until June 19, 2009 and to commence his sick leave on Monday, June 22, 2009. As it turned out, however, the respondent’s unionized employees, including the applicant, commenced a lawful strike on June 22, 2009. In his Application, the applicant states that he “went on sick leave on June 22, 2009, but did not receive any sick pay because of the strike that occurred from June 22nd to July 30th, 2009.”

7There is no dispute between the parties that sick pay is payable pursuant to the provisions of the collective agreement, which agreement was not in effect during the strike. The applicant acknowledges that, when the strike concluded, he received sick pay in accordance with the collective agreement until August 17, 2009 at which time he returned to work.

8Although the respondent disputes many of the above-noted assertions of fact by the applicant, since this decision is made at a preliminary stage, I base my decision on the facts as alleged by the applicant.

ANALYSIS AND DECISION

9The Supreme Court of Canada has confirmed that in cases under the Code, the onus is on the applicant to establish a prima facie case of discrimination:

Following the well-settled rule in civil cases, the plaintiff bears the burden. He who alleges must prove… The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer (Ontario Human Rights Commission v. Simpson-Sears Limited, 1985 CanLII 18 (S.C.C.), [1985] 2 S.C.R. 536, the Supreme Court of Canada confirmed that, in at para. 28).

10Where the applicant fails to make out a prima facie case of discrimination, it is neither legally correct, nor fair, just and expeditious to require the respondent to justify its actions under the Code: Jagait v. IN TECH Risk Management, 2009 HRTO 779 at para. 19.

11In this case, in order to make out a prima facie case of discrimination under the Code, the applicant must allege facts which, if true, could be a complete and sufficient basis for the Tribunal to find that the respondent treated the applicant in a disadvantageous manner based on his disability.

12In this case, the applicant alleges that he had a disability. He is also very clear in his position that the failure to pay him sick pay during the strike constituted disadvantageous (i.e. discriminatory) treatment by the respondent.

13However, the applicant does not allege facts which, if true, would allow the Tribunal to conclude that the respondent’s denial of the applicant’s sick pay claim during the strike was based on the applicant’s disability. Indeed, although the applicant complains that the respondent’s denial of his sick pay claim was “morally” wrong in light of the alleged agreement he had with the respondent to commence sick leave on June 22, 2009, he acknowledged during the teleconference that he was not “disadvantaged because of disability”. His Application also alleged that his sick pay claim was denied “because of the strike”.

14It is by now trite to say that the Tribunal does not have jurisdiction to remedy general claims of unfairness or mistreatment in the workplace, which are not based on a prohibited ground of discrimination under the Code. Rather, the Tribunal’s jurisdiction is limited to addressing discriminatory treatment or harassment which is based on one or more prohibited grounds under the Code.

15Assuming, without finding, that the denial of the applicant’s sick pay claim is the sort of disadvantageous treatment which might give rise to a finding of discrimination, there is no basis upon which the Tribunal could find that such denial was based on the applicant’s disability. Denying the applicant’s sick pay claim because of a strike does not engage a prohibited ground of discrimination under the Code, and is therefore not covered by the Code.

16The applicant also alleges that certain people who commenced sick leaves prior to the strike continued to receive sick pay during the strike. Even if true, that is not a basis upon which the Tribunal might conclude that the respondent’s decision to turn down the applicant’s sick pay claim, after the strike had commenced, was based on the applicant’s disability. On the applicant’s own version of events, all indications are that the applicant’s sick pay claim was turned down because of the strike and because the obligation to pay sick pay pursuant the collective agreement was no longer in effect.

17Finally, and although it is not clear that the applicant makes this argument, to the extent that the he alleges that the respondent somehow discriminated against him by encouraging him to stay on to help open the pool for the season and providing him with the assistance he required in order to work, I respectfully disagree. As the respondent argued, the respondent has a duty to accommodate its employees to the point of undue hardship by removing those obstacles which employees may face because of disability, with a view to allowing the employee to participate in the workplace as fully as possible. The fact that the respondent accommodated the applicant’s disability-related needs and thereby enabled him to work is consistent with the respondent’s duties under the Code and cannot give rise to a finding of discrimination under the Code.

18The facts alleged in the Application, even if assumed to be true, do not provide a complete and sufficient basis upon which the Tribunal could find that the respondent discriminated against the applicant on the basis of disability when it did not pay him sick pay during the 2009 strike. The Application therefore does not make out a prima facie case of discrimination under the Code and is dismissed accordingly.