Macyshyn v. McDonald’s Restaurants of Canada Ltd., 2011 HRTO 2183

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zenon Macyshyn

Applicant

-and-

McDonald’s Restaurants of Canada Ltd.

Respondent

DECISION

Adjudicator: Judith Keene

Date: December 5, 2011

Citation: 2011 HRTO 2183

Indexed as: Macyshyn v. McDonald’s Restaurants of Canada Ltd.

Appearances

Zenon Macyshyn, Applicant ) Self-represented

McDonald’s Restaurants of Canada Ltd., ) Marie-France Chartrand, Respondent ) Counsel

1This is a decision in respect of an Application filed on May 27, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Pursuant to a Case Assessment Direction (CAD) dated July 19, 2011 and Rule 19A of the Tribunal’s Rules of Procedure, the Tribunal directed, on its own initiative, that a summary hearing be held to determine whether this Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that it would succeed (see for example Dabic v. Windsor Police Service, 2010 HRTO 1994).

2A teleconference summary hearing was held on December 1, 2011. I heard evidence from the applicant, and the respondent made representations upon which the applicant was allowed to comment. I have concluded that the Application has no reasonable prospect of success.

3The applicant alleges discrimination with respect to employment and contract on the ground of sex and ancestry, and asserts that he was sexually harassed. The fact situation arose at a time when the applicant worked at one or more restaurants that bore the respondent’s corporate name. The parties agreed that employees of the respondent have a “Platinum Plan” (the “Plan”) that allows for discounts on meals at these restaurants.

4The applicant claimed differential treatment because the McDonald’s restaurant located at King and Dufferin Streets in Toronto (“the King and Dufferin restaurant”) would not sell him a single sandwich at the discount allowed under the Plan, but apparently insisted that he buy more than the sandwich. He asserted that he has seen “others”, (later clarified as other employees) permitted to buy a single sandwich and receive the discount. He stated that other managers of different McDonald’s restaurants have allowed him to receive the Plan discount on a single sandwich.

5The applicant’s claim of discrimination on the basis of sex rests on his assertion that he has on one or more occasions seen female employees at the King and Dufferin restaurant allowed to have the discount on “whatever they ordered”. His claim of discrimination on the basis of ancestry was rather vaguely expressed; he suggested that the manager of the King and Dufferin restaurant generally is nicer to employees of her own ethnicity. However, more often he asserted that the manager was nicer to her own employees than she was to him, as he did not work at that particular restaurant.

6The applicant’s claim of sexual harassment was based on his assertion that the manager had yelled at him when he tried to buy a discounted single sandwich, but did not yell at female employees who requested something similar. He repeated that she did not like “outsider” employees.

7The respondent indicated that the King and Dufferin restaurant was a franchise operation, and that in a franchise situation managers have discretion in respect of discounts on food for employees. The applicant stated that this information should be available to employees and the public, and that it is unfair that it is not made available.

8The applicant’s testimony has considerably qualified the Application in respect of his asserted reason for the actions and omissions of which he complains. It appears that, if he can bring evidence, it would focus on alleged favouritism in respect of her own employees on the part of a manager of a restaurant. Further, in respect of the claim of harassment, the applicant claims neither a “course of vexatious comment or conduct” nor “a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement”.

9As noted in the CAD of July 19, 2011, the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove, on a balance of probabilities, a link between a respondent’s alleged actions and a Code ground. It appears to me that the applicant cannot demonstrate such a link. I find that there is no reasonable prospect that the Application can succeed.

10The Application is dismissed.