Karst v. Dan Symes, 2010 HRTO 2197

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lynn Karst on behalf of Karl Karst

Applicant

-and-

Dan Symes

Respondent

DECISION

Adjudicator: Alison Renton

Date: November 4, 2010

Citation: 2010 HRTO 2197

Indexed as: Karst v. Dan Symes

APPEARANCES BY:

Lynn Karst on behalf of Karl Karst, ) Self-represented Applicant )

Dan Symes, Respondent ) Patrick Fisher, Representative

1Lynn Karst filed an Application under s. 34(5) of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”), on December 3, 2009 on behalf of her husband Karl Karst. Mr. Karst consented to her filing an Application on his behalf. The Application alleges discrimination on the basis of disability in employment.

2Following Kacan v. Ontario Public Service Employees Union, 2010 HRTO 795, Ms. Karst is identified as being the applicant as she filed the Application. Mr. Karst is identified as being the complainant because the Application alleges that his rights were violated.

3A hearing was scheduled pursuant to a Confirmation of Hearing Notice and Amended Confirmation of Hearing Notice both dated July 6, 2010 and was held on October 28, 2010 in London.

4The applicant attended the hearing without the complainant and the respondent attended along with his representative who is an employee of the same company, Betco Products Inc. (“Betco”). The applicant stated that the complainant was not available to attend the hearing because he had recently started a new job and did not have enough service to get the day off work.

5The applicant did not offer any testimony in examination-in-chief, but responded to questions from the Tribunal and some cross-examination from the respondent’s representative.

6The respondent testified in examination-in-chief, but the applicant chose not to cross-examine him. In addition to the evidence, a number of documents, including medical documentation and statements, were entered as exhibits.

7For the reasons set out below, the Application is dismissed.

The Evidence

8I am satisfied that the documentary evidence submitted by the applicant supports a finding that the complainant had a disability within the meaning of the Code, which was not disputed by the respondent.

9The Application primarily raises allegations about the complainant’s behaviour and interactions with the respondent in August 2009 at the workplace (“the main allegations”), which the applicant alleges amounts to discrimination in employment against the complainant on the basis of disability. The applicant was not present at the workplace and did not present any first hand evidence about the main allegations because the complainant did not testify. Accordingly, I have not given the applicant’s allegations about the main allegations any weight because they amount to hearsay and there was no other first hand evidence submitted by the applicant in support of the allegations.

10Other than the main allegations, the facts were not seriously in dispute between the parties.

11The complainant was laid off from his position with Betco in January 2009 along with a number of other employees. On August 17, 2009, he was called by the respondent, who is the plant coordinator, and asked if he was interested in returning to work. He was the only laid off employee to be called back. He was and worked a shift that started at 3:30 pm on August 17, 2009. He went to work on August 18, 2009, but left part of the way through the shift. The allegations about August 18 are the main issues in the Application.

12The applicant alleges that the complainant wanted to leave work on August 18 because he was not feeling very well, was shaky and agitated and not thinking clearly. The applicant alleges that the respondent told the complainant, “Well get your tools and get out! You quit right right!” to which the complainant stated, “Well I guess I quit”.

13Upon returning home, the applicant described the complainant are being “terrible”. She felt that mentally he was not himself and he was shaking. The applicant took the complainant to a medical clinic. They obtained a note dated August 18, 2009 which stated, “Karl is unfit to work as of August 18/09 due to a medical illness. He will be off for up to 4 – 6 wks”. This note was not given to the respondent until July 2010. Tragically, on August 20, 2009 the complainant was admitted to the hospital as a result of a drug overdose and remained in the hospital for a period of time.

14The applicant alleges that the respondent discriminated against the complainant on the basis of disability and submits that the respondent observed or ought to have aware from the complainant’s behaviour that he was suffering from a mental health disability when he returned to work in August 2009. The claimant should not have been allowed to quit and should not have been fired.

15The respondent testified that the complainant reported for his shift on August 17 at 3:30 pm and attended the respondent’s office. The respondent explained his wage rate and told the complainant that he was not expected to remember everything about operating the machinery and it would be fine if he wanted to work just part of the shift because he was not used to working evenings. The respondent told the night shift supervisor that the complainant was back at work and left work himself.

16On August 18 between 2:45 and 3:00 pm, the complainant came into the respondent’s office and told the respondent that he could not do it. The respondent again explained that the company did not expect him to perform as he had before the layoff and that it would take some time to reacquaint himself with the work. The complainant repeated that he could not do it and again the respondent reiterated that it would take some time. For a third time, the complainant said that he could not do it and the respondent asked if he was quitting to which the complainant said that he was. The complainant stood while he was speaking, but was not shaking. He did not look happy, but this was understandable in the circumstances. He left the respondent’s office, took his personal items and did not return. The respondent did not fire the complainant.

17Until the respondent received the Application, neither he nor the company were aware that the complainant had any mental health issues or his subsequent hospitalization. As set out in paragraph 8 above, the respondent did not dispute that the complainant’s condition constituted a disability under the Code.

18A purported conversation between the complainant and a co-worker held on August 18 at approximately 3:00 pm (“the conversation”) was admitted as an exhibit by the applicant without objection from the respondent. The conversation, which is accepted as being true for the purpose of this determination, indicates that the complainant told a co-worker that he was not coming back to work and did not want to talk about it. The conversation does not reference the respondent nor the company (although the Application was not filed against the company), does not give any indication that mental health issues were at play or that the respondent was aware of mental health issues and ultimately I do not give it any weight.

19A statement by the night shift supervisor was admitted as an exhibit by the respondent without objection from the applicant. The statement describes the supervisor’s interactions with the complainant at work on August 17, but not on August 18 because the complainant left work before the supervisor arrived at work. The supervisor claims to have called the complainant at home on August 18 to see what was going on and why he quit and states that the complainant told him that he was disappointed with himself and could not remember how to perform his job functions. The applicant denied that there was a telephone call from the supervisor that night. There is no information in the statement to suggest that the complainant was exhibiting a disability or was perceived to have a disability.

Analysis

20Under section 5(1) of the Code every person has the right to equal treatment with respect to employment without discrimination because of disability. Disability is defined in section 10(1) as including a “mental disorder” and section 10(3) states:

The right to equal treatment without discrimination because of disability includes the right to equal treatment without discrimination because a person has or has had a disability or is believed to have or to have had a disability.

21It is clear from the Tribunal’s jurisprudence that in order for the applicant to be successful, there must be sufficient evidence to allow the Tribunal to find that it is more likely than not that discrimination occurred, whether it be direct discrimination or discrimination to be inferred from the facts put before the Tribunal. See Junejo v. Peel (Regional Municipality), 2009 HRTO 1912 and Covell v. Robert Half International, 2010 HRTO 347. The applicant bears the onus of proving discrimination on a balance of probabilities and if he or she cannot, the Application will be dismissed. See Iqbal v. Inscape Corporation, 2009 HRTO 1189.

22I find that the applicant has not met the burden of proving discrimination on a balance of probabilities. I accept that discrimination can occur because of a perceived disability, but in this case there is no evidence that the respondent was aware, at the time, of an actual disability or perceived disability. See Kreiger v. Toronto Police Services Board, 2010 HRTO 1361. The respondent testified that he was not aware of any mental health issues pertaining to the complainant and, on August 17 and 18, did not observe behaviour that would lead him to believe the complainant had a disability. I accept the respondent’s evidence that the complainant stood while speaking with the respondent and that the complainant, while unhappy with his situation, was not exhibiting signs that led the respondent to believe that he had a disability. The applicant acknowledged that no medical information about the complainant’s mental health had been provided to the respondent or the company before the complainant returned to work in August 2009 or immediately afterwards. I accept the respondent’s evidence that he did not know about the complainant’s mental health condition and subsequent hospitalization until the Application was received.

23The applicant provided no first hand evidence to substantiate the complainant’s allegations. The applicant admitted that she was not at the workplace and she based her allegations upon the complainant’s information as communicated to her. The complainant did not testify not because he was medically unwell and unable to attend a hearing, but because he had commenced a new job and was unable to get time off to attend the hearing. The applicant did not file a witness statement for the complainant despite a Case Assessment Direction being issued by the Tribunal directing both parties to file information about their witnesses and the applicant did not file any other statement by the complainant. There was no evidence submitted by the applicant that the respondent was aware of or ought to have been aware of the complainant’s disability. The medical evidence that was submitted by the applicant is dated after the complainant left work on August 18 and was not presented to the respondent until after the Application was filed. The failure of the applicant to present such evidence is enough for the Tribunal to dismiss the Application without requiring the respondent to respond to the allegations.

24The complainant’s situation after he left work on August 18, 2009 is tragic and the Tribunal accepts that the applicant’s statement that she, the complainant and their family have had to deal with a lot of grief and counselling after August 18. However, the applicant has not proven the allegations and the Application is dismissed.