Gonzalez v. Bustard, 2010 HRTO 706

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Juan Gonzalez

Applicant

-and-

Jim Bustard, Arpad Takacs, Tien Lam and Lorie Sloan

Respondents

DECISION

Adjudicator: Jennifer Scott

Date: March 30, 2010

Citation: 2010 HRTO 706

Indexed as: Gonzalez v. Bustard

AppearanceS BY

Juan Gonzalez, Applicant ) On His Own Behalf

Jim Bustard and Arpad Takacs, ) Alan McConnell, Respondents ) Representative )

Tien Lam, Respondent ) Did Not Appear

Lorie Sloan, Respondent ) William Counter, ) Representative

Background and Procedure

1This is an Application filed August 10, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission (the “Commission”) on April 12, 2006 and abandoned upon filing this Application with the Tribunal.

2The Application was commenced against Cam Tool & Die Ltd. (“Cam Tool”) and the individual respondents Jim Bustard, Arpad Takacs, Tien Lam and Lorie Sloan. On August 22, 2009, the Tribunal was advised that Cam Tool was bankrupt. On October 2, 2009, the Trustee in Bankruptcy advised the Tribunal a stay of proceedings was in effect for Cam Tool under the Bankruptcy and Insolvency Act, R.S.C. 1985, c.B-3, as amended. All parties agreed the Application could not proceed against Cam Tool because of the stay.

3The hearing was conducted on February 18, 2010 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(5) applications proceed in a highly expeditious manner.

4The applicant claims he was discriminated against in employment on the basis of disability and ethnic origin by the individual respondents contrary to sections 5 and 9 of the Code.

5The applicant testified on his own behalf. He did not call any other witnesses in support of his Application. At the close of the applicant’s case, the individual respondents sought a dismissal of the Application on the basis that the applicant had not established a prima facie case of discrimination. This is the Tribunal’s decision on the respondents’ request to dismiss the Application.

Decision

6The Application is dismissed. What follows are my reasons.

Background

7The applicant commenced employment with Cam Tool in August 2004 as a general labourer. He worked at the West Beaver Creek facility.

8The individual respondents held the following positions with Cam Tool: Arpad Takacs was the owner, Jim Bustard was the general manager of operations; Lorie Sloan was in charge of health and safety; and Tien Lam was the applicant’s supervisor.

9On August 19, 2005, the applicant injured his back while working.

10On September 8, 2005, the applicant’s physician, Dr. Iskander, completed a Workplace Safety Insurance Board (“WSIB”) functional abilities form for the applicant’s lower back injury. Dr. Iskander noted the applicant had certain restrictions relating to walking, lifting, bending and twisting. These restrictions were for a period of four weeks. The applicant provided this form to his employer.

11On September 26, 2005, the individual respondent Lorie Sloan asked the applicant for a doctor’s note regarding his restrictions. On September 26, 2005, Dr. Iskander completed a second functional abilities form regarding the applicant’s back stating he should continue with physio-therapy. There were no physical limitations noted on the form and Dr. Iskander indicated the applicant could return to work immediately without restrictions.

12The applicant alleges that on October 7, 2005, Ms. Sloan called him a liar because the accident date listed on one of the WSIB forms was incorrect. The September WSIB forms do not contain inconsistent dates. There is no accident date on the September 8 form and the September 26 form indicates an accident date of August 19, 2005.

13On October 11, 2005, the individual respondent Tien Lam instructed the applicant to pack 50-60 pound boxes. There were no physical restrictions in place for the applicant at this time.

14On October 12, 2005, Dr. Iskander completed a third functional abilities form for an injury to the applicant’s left knee. He stated the applicant could not engage in prolonged squatting for three days or twisting of his left knee. The applicant provided this form to Mr. Lam on October 13, 2005.

15On October 15, 2005, Mr. Lam sent the applicant to lift 80-90 pound parts. There were no lifting restrictions in place at this time.

16The applicant claims he was given no light duty work in November 2005. There were no physical restrictions in place at this time.

17On December 8, 2005, Dr. Iskander completed a fourth functional abilities form for the applicant’s lower back noting certain physical limitations for a period of four to six weeks. This form was provided to Mr. Lam on December 9, 2005. The applicant was immediately given light duties by Mr. Lam. The applicant wanted different light duties.

18The applicant and many other workers were laid off in March 2006 because of a shortage of work. The applicant returned to work in early April 2006 on light duties.

19On April 10, 2006, Mr. Lam wanted the applicant to return to regular duties. The health & safety department was in possession of a WSIB report stating the applicant’s workload should be increased.

20On April 11, 2006, the applicant’s physician completed a fifth functional abilities form for the applicant’s lower back stating he had physical limitations for four to six weeks. The applicant provided this form to Mr. Lam. The applicant was given light duties and remained on light duties for the remainder of his employment.

21On April 12, 2006, the applicant filed his complaint with the Commission alleging discrimination in employment on the basis of disability and ethnic origin.

22On May 30, 2006, the applicant’s employment with Cam Tool was terminated because the West Beaver Creek facility was closed.

Alleged Discrimination

23The applicant makes different allegations of discrimination for each of the individual respondents. For the general manager of Cam Tools, Jim Bustard, the applicant claims Mr. Bustard stopped him when he was removing skids for his personal use from the workplace. The applicant states he had been removing the skids for approximately five months and Mr. Bustard made him feel like a thief when he questioned him. The applicant also believes Mr. Bustard discriminated against him when, on April 20, 2006, he asked the applicant not to sign in at the plant using his plastic card.

24The applicant has failed to establish that Mr. Bustard treated him differently because of his disability or ethnic origin. Mr. Bustard was acting within his capacity as general manager when he questioned the applicant’s removal of company property and when he asked the applicant not to sign in with his plastic card. Neither of these requests contravened the applicant’s rights under the Code. The applicant has failed to establish discrimination on the part of Mr. Bustard and the allegations against him are dismissed.

25The applicant’s claim against the owner of Cam Tools, Arpad Takacs, is based on the assertion that he overheard Mr. Takacs say to Mr. Bustard if “he did not know how to solve the problem, he was going to take his office over”. The applicant concedes he had no idea what “problem” Mr. Takacs was referring to. The applicant also relies on the fact that Mr. Takacs was with Mr. Bustard when he questioned the applicant’s removal of the skids.

26These incidents do not constitute discriminatory treatment on the part of Mr. Takacs. With respect to the first incident, there is no evidence the comment related to the applicant. With respect to the second incident, it was not discriminatory for Mr. Bustard to question the applicant’s removal of company property nor was it discriminatory for Mr. Takacs to be present when the applicant’s conduct was questioned. The applicant has failed to establish discrimination against Mr. Takacs and the allegation against him is dismissed.

27The applicant believes Lori Sloan discriminated against him when she requested a WSIB report on September 26, 2005 when he was under light duties for four weeks from September 8, 2005. There was nothing discriminatory about Ms. Sloan’s request for a further report in the third week of a four-week restriction. The WSIB report of September 26, 2005 indicated the applicant no longer had any restrictions. It was reasonable for Ms. Sloan, the person in charge of health and safety, to request an updated report and her request did not constitute discrimination under the Code.

28The applicant claims that Ms. Sloan called him a liar on October 7 or 8, 2005 because he had an incorrect accident date on the WSIB form. I do not accept his evidence for several reasons. One, the WSIB forms were completed by the applicant’s doctor, not the applicant. It does not make sense to blame the applicant for information completed by his doctor. Two, the forms do not contain inconsistent dates. Three, the applicant documented all of his interactions with the company on his personal calendar. There is no mention of Ms. Sloan calling the applicant a liar although other interactions with Ms. Sloan are noted in great detail on the calendar.

29Finally, the applicant claims Ms. Sloan was “cold” towards him. He also testified that Ms. Sloan treated him with dignity and respect. The applicant stated Ms. Sloan was “kind of tough in the way she talked”. The fact that Ms. Sloan may have had a more distant demeanour with the applicant does not constitute discrimination by Ms. Sloan. The applicant has failed to establish discrimination against Ms. Sloan and his allegations against her are dismissed.

30The remaining individual respondent is Tien Lam. Mr. Lam did not attend the hearing. The applicant’s claim against Mr. Lam is that he required the applicant to do work beyond the applicant’s physical restrictions. While such an allegation may constitute discrimination under the Code, the applicant has failed to prove this claim.

31The applicant testified that Mr. Lam required him to pack 50-60 pound boxes on October 11, 2005. The applicant had no physical restrictions at this time. The applicant’s doctor suggested light duty work for three days on the following day, October 12, 2005.

32The applicant testified further that he was not given light duties in November 2005. There was no requirement to give the applicant light-duty work in November 2005. The WSIB form in effect at the time was the October 12, 2005 form which required light duty work for three days.

33The applicant claims he was not given light duties in December 2009. The applicant obtained a WSIB functional abilities form on December 8, 2009 and gave it to Mr. Lam on December 9, 2009. The applicant was given light duty work immediately. His complaint is that he wanted different light duties.

34Finally, on April 10, 2006, Mr. Lam advised the applicant that he wanted him to return to regular duties because of a WSIB report indicating the applicant should increase his workload. The applicant obtained a WSIB functional abilities form from his doctor on April 11, 2006 which indicated light duties for four to six weeks. The applicant provided this form to Mr. Lam and he was immediately given light duties until his termination on May 30, 2006 when the plant closed.

35The applicant has failed to establish that Mr. Lam required him to do work contrary to his physical restrictions. The evidence shows the applicant was consistently given light duties when he provided functional ability forms to the company from his doctor. The fact that on one occasion, the applicant desired different light duties than those provided to him does not amount to a failure to accommodate his disability.

36The applicant has failed to establish that the individual respondents contravened his rights under the Code. There is no evidence that any of the individual respondents harassed the applicant because of his disability or ethnic origin. The applicant’s physical restrictions were accommodated at all times. Even if the individual respondents had failed to accommodate the applicant’s restrictions, they were at all times acting within the scope of their employment and as such, there is no personal liability for their actions. For all of these reasons, the Application is dismissed.

Order

37This application is dismissed.