Neil Ryckman v. Dollco Corporation, 2011 HRTO 2214

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Neil Ryckman

Applicant

-and-

Dollco Corporation

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: December 7, 2011

Citation: 2011 HRTO 2214

Indexed as: Ryckman v. Dollco Corporation

APPEARANCES

Neil Ryckman, Applicant ) Alayna Miller, Counsel

Dollco Corporation, Respondent ) Landon Young, Counsel

1In this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”), the applicant alleges that the respondent discriminated against him with respect to employment on the basis of age and disability.

2A summary hearing was held in this matter on December 6, 2011. Pursuant to Rule 19A of the Rules of Procedure, a summary hearing is to determine whether an Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed. If, following a summary hearing, the Tribunal finds that an Application has no reasonable prospect of success, it will be dismissed. In the absence of such a finding, the Application will continue to be processed by the Tribunal.

3The applicant was 62 years old and had worked for the respondent as a sales representative for 35 years when, on February 23, 2011, his supervisor suggested that the applicant retire. In the days that followed, the applicant had discussions with the respondent’s Vice-President of Human Resources about the sort of retirement package the respondent would be willing to offer the applicant in order for him to retire, as well as the sort of package the applicant might be willing to accept. Ultimately, the respondent made an offer which was not accepted by the applicant. The applicant continues to work for the respondent to the present day.

4During the summary hearing, the applicant acknowledged that offering a voluntary retirement package to older workers is not discriminatory per se. He submits, however, that he was “pressured” into retiring by the respondent and that pressuring an older worker to retire constitutes discrimination on the basis of age.

5In support of his allegation that he was pressured into retiring, the applicant raised certain allegations during the summary hearing which do not appear to be contained in the Application he filed with the Tribunal. Among other things, the applicant alleges that a day or so after his supervisor suggested that he retire with a package, the applicant asked the respondent’s VP of Human Resources if he “had to” take a retirement package, to which the VP replied that the applicant’s supervisor did not feel that the applicant was performing his duties. The applicant alleges that he then asked his supervisor what would happen if the parties could not agree on a package and his supervisor told him that they “had to” find a resolution. The applicant alleges that he interpreted these comments to mean that if he did not agree to retire with the package offered by the respondent, his employment would be terminated.

6In its Response to the Application, the respondent alleges that problems with the applicant’s work performance precipitated the respondent’s suggestion that the applicant retire.

7The applicant denies that there were any problems with his work or that he ever received any feedback from his employer in that regard. The applicant contends that alleged problems with his work are just an excuse and that the respondent really wanted to “get rid” of him based on its stereotypical views about older workers, views which, the applicant contends, are reflected in certain correspondence to him from the respondent.

8In the alternative, if the respondent really did perceive that there problems with the applicant’s performance, the applicant submits that the respondent discriminated against him on the basis of age by pressuring him to retire instead of bringing its concerns to the applicant’s attention and giving him an opportunity to improve, as it would have done for a younger employee: Weiler v. Farncomb Kirkpatrick & Stirling Surveying, 2009 HRTO 528.

9In addition, the applicant alleges that one of the reasons given by the respondent for suggesting that he retire was that the applicant had no enthusiasm for his job. The stated basis for this perception, the applicant alleges, was the fact that the applicant was often away from work during business hours. The applicant concedes that he was away from work during business hours, but only for medical appointments related to disability. Since disability-related absences were part of the reason the respondent tried to get him to retire, the respondent’s actions constituted discrimination on the basis of disability, the applicant argues.

10At this stage, it is not appropriate to make any factual or legal findings with respect to the applicant’s allegations. Suffice it to say that, having heard and considered the applicant’s allegations, I am unable to conclude that the applicant has no reasonable prospect of success in proving that the respondent infringed his rights under the Code. The Application will therefore continue in the Tribunal’s process.

11As noted above, the applicant made certain allegations during the summary hearing which do not appear to be contained in the Application. In addition to certain allegations outlined above (which is not intended to be, and is not, an exhaustive recital of all of the issues and/or allegations in this matter), the applicant also asserted during the summary hearing that the respondent has “perhaps reprised” against him as a result of his having asserted his rights under the Code.

12The Tribunal directs the applicant to put any allegations which are not already contained in the Application, whether or not referred to above, in writing and to deliver them to the respondent and file them with the Tribunal within 21 days of the date of this Decision. The respondent may respond in writing to these additional allegations within 21 days of receipt. The applicant may file his written reply to the response to the allegations in question within 14 days of receiving it.

13In its Response to the Application, the respondent submits that the Application constitutes an abuse of the Tribunal’s process and disputes that the applicant makes out a prima facie case of discrimination under the Code. These issues were not before me on the summary hearing. The respondent may pursue them, if it wishes to do so, before the adjudicator assigned to hear the case on its merits.

14I am not seized of this matter.