Moss v. Edward D. Jones, 2011 HRTO 166

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leslie Moss

Applicant

-and-

Edward D. Jones & Co.

Respondent

DECISION

Adjudicator: Naomi Overend

Date: January 24, 2011

Citation: 2011 HRTO 166

Indexed as: Moss v. Edward D. Jones

APPEARANCES

Leslie Moss, Applicant ) Self-represented )

Edward D. Moss & Co., Respondent ) Dean Palmer and

) Lesley Henry

) Counsel

1The applicant filed an Application with the Tribunal under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). His Application concerned the termination of his employment, but did not allege discrimination on the basis of any named ground in the Code.

2Following receipt of the Application, the respondent filed a Request for Order During Proceedings (Form 10) in which it requested that the Tribunal “enforce” a settlement it alleged was verbally reached between the parties. Rather than address that Request, the Tribunal issued its first Interim Decision in this matter, 2010 HRTO 666, in which it asked for submissions from the parties on the jurisdiction of the Tribunal to deal with an Application that appeared to have no link to the Code.

3The applicant responded to this request for submissions by making further allegations, which on their face were linked to the grounds of marital status (although he did not name this ground), family status and sex. The Tribunal issued a second Interim Decision, 2010 HRTO 1039, in which it determined that the allegations made collectively in the Application and submissions were within the Tribunal’s jurisdiction to decide.

4This matter was initially scheduled for a hearing on January 12, 2011, but upon receipt of a Request for Summary Hearing (Form 26), the Tribunal directed that the hearing be converted to a Summary Hearing, pursuant to Rule 19A of the Tribunal’s Rules of Procedure. This Rule reads, in part, as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

5Pursuant to Rule 19A.2, the Tribunal directed that the parties be prepared to address:

Whether the Application has a reasonable prospect of success in light of the submissions of the respondent in the Request for Summary Hearing; and

Whether the Application is barred because of an oral settlement, as set out in the respondent’s Request of March 4, 2010.

DECISION

6The Application does not have a reasonable prospect of success and is dismissed. Accordingly, it is not necessary to determine whether there was a settlement reached between the parties and, if so, whether it precludes proceeding with this Application.

ANALYSIS

7The issue that Rule 19A directs the Tribunal to determine is whether the Application has no reasonable prospect of success. In the first case decided under the new procedure, Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal provided the following guidance:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

8At the outset of the Summary Hearing, I directed the applicant to explain the factual basis for each of the four additional allegations he made in his submissions to the Tribunal on jurisdiction. I also asked him to explain why, if true, they would amount to a breach of the Code.

9By way of background, the applicant was hired as a trainee investment advisor. He spent the first several months studying and preparing for exams that would give him the necessary certification. Once certified, he had a 17 week period in which he was expected to generate a certain amount of business (the “evaluation period”). It was at the end of this 17 week evaluation period that the applicant’s employment was terminated.

10The applicant’s first allegation is as follows: “During my tenure Edward Jones showed bias towards those who were married by involving their spouses in the efforts to encourage their spouses in their work.” Although the applicant labels this “family status” discrimination, counsel for the respondent rightfully points out that this allegation relates to the ground of marital status.

11The applicant explained that at the time of the events giving rise to the Application he was divorced and living alone. He heard from those of his fellow trainees who did have spouses that their partners received letters from the respondent, during the educational component of the training, asking them to encourage the trainees to stick to their studies.

12The respondent denies that this action is discriminatory. The applicant was unable to explain why it was preferential treatment of those who were in spousal relationships or why it had an adverse effect on him. He was successful in the educational/certification portion of his training. This allegation of discrimination on the basis of marital status does not have a reasonable prospect of success.

13The applicant asserts that his second and third allegations of adverse treatment relate to the ground of family status. They read as follows:

2. As a single parent, I needed to take vacation to see my children, who live outside the country. It was understood that we were required to not take vacation for the first 4 months. However, when I attempted to do so after this period, I was penalized (this despite Edward Jones asserting that vacation time was built into my pay structure).

3. Up to the time I was terminated, my family and I were invited to a regional event. I informed my young son of this and he was very excited. Days before I was terminated, I was still told that we would attend. I was even asked certain information about my son in preparation for the event. Then, just days after, I was told otherwise. My son was devastated.

14In his oral submissions, the applicant stated that he understood that during the period prior to certification he would not be able to take time off work, but thought that he would be entitled to take paid vacation leave after he successfully completed the educational component of his training. When he attempted to take this leave, however, he was informed that he was not entitled to take a paid leave.

15The respondent explained that the applicant appeared to have been confused about what he was told about vacation pay. Rather than accruing vacation time, a certain percentage of his salary, representing his vacation pay, was added to each pay cheque.

16The applicant approached management about taking time off during what would have been his 17 week evaluation period. He was advised that if he wished to continue drawing a salary (the trainees were still on salary during this period), his 17 weeks would continue to run, which would be to his detriment when it came time to assess his “book” of business. Alternately, the applicant was advised that he could take an unpaid leave, during which period time would not accrue towards his 17 weeks. Neither option was acceptable to the applicant.

17The applicant did not dispute the respondent’s version of events. While there is a duty to accommodate, short of undue hardship, an employee’s legitimate child care needs, this duty does not mandate a paid leave to visit a child who resides elsewhere. Accordingly, this allegation does not constitute a violation of the Code.

18The applicant’s other allegation of family status discrimination relates to the respondent’s withdrawal of a perk of employment following the termination of his employment. It is common ground between the parties that the respondent was hosting a social event at a resort outside of Toronto, which coincided with the end of the 17 week evaluation period. Family members were invited to this event and the applicant intended to bring his family, including his son.

19In his oral submissions, the applicant said he was under a great deal of stress because at the same time as this event was being organized – and he was being asked questions about his family – he was not meeting his targets for the business he was supposed to be generating. It is his position that the stress he was put under, as well as his son’s disappointment at the opportunity being withdrawn, constitutes discrimination on the basis of family status.

20The respondent explained, and the applicant did not dispute, that this event just happened to coincide with the end of the applicant’s evaluation period and that it was not possible to determine whether the applicant was going to be successful until the end of the evaluation period.

21It was the respondent’s position that it would not been appropriate to have terminated employees attend such an event, and while the child’s disappointment at having the invitation withdrawn was understandable, the respondent’s action did not constitute discrimination on the basis of family status. I agree with the respondent’s submission that rescinding an invitation to a work-related social event after a person’s employment has been terminated does not violate the Code.

22The applicant’s fourth and final allegation of discrimination is as follows: “Edward Jones focussed more efforts on recruiting and supporting females in the role.” In his oral submissions, the applicant was asked to explain what he meant by this and how he intended to prove such an allegation.

23The applicant stated that most of the information on this would be in the respondent’s possession, but that he was told during his training period that while he was working his area to develop his book of business, he was to be on the look-out for potential female recruits because the respondent felt it did not have enough female financial advisors.

24The applicant said he successfully recruited female investment advisor trainees, but that he was not recognized for this effort. The applicant acknowledged that he did not come close to meeting his target of $2,900 in commissions during the evaluation period, but felt that the respondent should have evaluated him on his ability to attract female recruits into the firm.

25With respect to the retention of female recruits, the applicant was asked several times to explain what the respondent did to support or otherwise retain woman financial advisors. The applicant did not provide an answer to how he intended to prove this allegation or, for that matter, how the respondent failed to support him during his training and evaluation.

26The respondent denied that the trainees were asked to recruit female advisors. It said that recruits were primarily evaluated on whether they met the $2,900 in commission targets, which was labelled “production.” While the respondent also emphasized “prospects,” this related to potential new business, not the recruitment of other advisors

27Assuming the applicant is able to prove that there was a drive to recruit more female advisors, it does not assist him with respect to his case, since he was recruited and trained by the respondent and so was not adversely affected by any such drive. He does not allege that the respondent failed to support him in his business development efforts. Moreover, he is unable to articulate what proof he might proffer to demonstrate that his failure to come anywhere close to his production targets during his evaluation period was related to the respondent’s alleged preference for female advisors. There is no reasonable prospect that the applicant will succeed in proving this allegation.

28Viewed as a whole, the applicant has made a number of allegations in his Application and submissions which are not prima facie violations of the Code on the basis of family or martial status. That is, even if true, these allegations are not within the jurisdiction of the Tribunal. He makes only one allegation that, if true, could constitute discrimination on the basis of sex. However, it is clear that the applicant does not have evidence available to him to prove such an allegation, and that this allegation amounts to nothing more than speculation on his part.

29In light of the above, there is no reasonable prospect that the Application will succeed. The Application is, accordingly, dismissed.