Somwar v. Metal Supermarkets Corporation, 2011 HRTO 2321

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jainarine Somwar

Applicant

-and-

Metal Supermarkets Corporation and Stephen Schober

Respondents

DECISION

Adjudicator: Sheri D. Price

Date: December 28, 2011

Citation: 2011 HRTO 2321

Indexed as: Somwar v. Metal Supermarkets Corporation

APPEARANCES

Jainarine Somwar, Applicant ) Self-represented

Metal Supermarkets Corporation ) Stephen Bernofsky, Counsel

and Stephen Schober, Respondents )

INTRODUCTION

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), in which the applicant alleges that the respondent reprised against him contrary to s.8 of the Code because he refused to infringe others’ rights under the Code.

2After receiving the Application, the respondents filed a Request for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure. In their Request, the respondents took the position that the Application was outside the Tribunal’s jurisdiction pursuant to s.34 of the Code because the Application had been filed more than a year after the date of the last event on which the Application was based, and the applicant had not established that the delay in filing the Application had been incurred in good faith. The respondents also took the position that the applicant had no reasonable prospect of success in proving his allegations that the respondents had infringed his rights under the Code.

3Pursuant to a Case Assessment Direction dated July 26, 2011, the Tribunal granted the respondents’ Request for a summary hearing to address both the timeliness of the Application and whether the Application has a reasonable prospect of success. In its Case Assessment Direction, the Tribunal advised the parties that the Tribunal would dismiss the Application if, following the summary hearing, it found that the Application had no reasonable prospect of success or was outside the Tribunal’s jurisdiction on the basis of delay.

4The summary hearing was held by teleconference on December 15, 2011. During the summary hearing, the parties were given an opportunity to make submissions on the delay issue. The applicant was also given an opportunity to explain how he could establish that the respondents infringed his rights under the Code if the Application were to proceed.

REPRESENTATION BEFORE THE HRTO

5At the outset of the summary hearing, the applicant indicated that he would be represented during the summary hearing by Mr. J.P. Pampena. The Application which was filed with the Tribunal also indicated that Mr. Pampena was the applicant’s representative in this matter.

6Since it did not appear that Mr. Pampena was a licensee of the Law Society of Upper Canada (i.e. a licensed lawyer or paralegal), I sought clarification from Mr. Pampena as to whether he was entitled to represent the applicant pursuant to Rule 1.14 of the Tribunal’s Rules of Procedure and the Tribunal’s “Policy on Representation before the HRTO”. Mr. Pampena indicated that, as a public relations consultant, he did not fall within one of the categories of persons who are entitled to act as a representative in a proceeding before the Tribunal pursuant to the Tribunal’s Rule and Policy. In light of that fact, I advised the parties that it appeared that Mr. Pampena would not be permitted to represent the applicant in this proceeding, based on the Tribunal’s Policy, which states:

A person who is not licensed, whose license is suspended or who is not in a exempted category will not be permitted to act as a representative in an HRTO proceeding.

7Mr. Pampena indicated that even though he was not permitted to represent the applicant on the summary hearing, he did not wish to have the matter delayed and that his client, the applicant, was well prepared to represent himself on the summary hearing. He proposed that the summary hearing proceed as scheduled.

8At that point, I asked the applicant how he wished to proceed. I specifically advised the applicant that one of the options available to him was to request an adjournment of the summary hearing (so that he could prepare to represent himself on the summary hearing, if need be, or so that he could obtain another representative who could represent him before the Tribunal). I also advised the applicant that, in the circumstances, I would look favourably on any request for an adjournment he wished to make. Alternatively, if the applicant wished, the summary hearing could proceed, as scheduled, with the applicant representing himself. I advised the applicant that if he chose to proceed with the summary hearing as scheduled, he would not be prevented from speaking to Mr. Pampena before or during the hearing, either privately (i.e. on a separate telephone line during breaks) or on the conference call line with myself and the respondents’ counsel present. The respondents had no objection to proceeding in that manner.

9The applicant indicated that he did not wish to seek an adjournment of the summary hearing and that he was ready to proceed on his own behalf. The summary hearing proceeded, as scheduled, on that basis. Although he did not act as the applicant’s representative during the summary hearing, Mr. Pampena was on the call throughout the summary hearing, primarily as an observer. At one point, however, he did provide some factual information about the date on which he indicates he originally submitted the Application to the Tribunal on the applicant’s behalf.

BACKGROUND

10The applicant was hired by the corporate respondent as a Regional Manager for the Greater Toronto Area in August 2007. The applicant contends that he performed his job very well, and that his work was consistently praised by the respondents. In March 2009, the respondents promoted the applicant to the position of Regional Manager for Ontario.

11The applicant alleges that shortly after being promoted, also in March 2009, the personal respondent and CEO of the corporate respondent, Stephen Schober, asked the applicant to terminate the employment of a number of long-service employees of the corporate respondent “for cause”, even though the employer did not have cause for the terminations. The applicant alleges that the terminations “for cause” were to be carried out for the express purpose of avoiding the corporate respondent’s obligation to provide the terminated employees with the severance pay to which they would otherwise be legally entitled. The applicant contends that he refused to carry out these instructions because he regarded them as unethical and it went against his principles to follow them. The applicant alleges that rather than terminate the employees in question, he did lay a couple of them off.

12In their Response to the Application, the respondents deny that the applicant was ever asked to terminate employees “with cause” so that the company could avoid its legal obligations to provide severance pay.

13On August 14, 2009, approximately six months after the applicant’s promotion, the respondents terminated the applicant’s employment. The applicant submits that no reason for his termination was given at the time his employment was terminated. However, he was later told that the decision to terminate his employment related to “inventory issues.” The applicant maintains that there were no problems with his work performance around inventory-taking and that in fact he had been the one to help sort out some concerns the respondents had about inventory-taking at the corporate respondent’s Mississauga branch. The applicant contends that the inventory issues were merely a pretext for terminating his employment and that, in reality, the respondents terminated his employment in retaliation for his refusal to infringe on the rights of other employees not to be terminated with cause when there was no cause for termination, thereby depriving them of severance pay.

14The applicant further submits that the termination of his employment was carried out in a particularly insensitive and unprofessional manner insofar as his employment was terminated at a branch location of the corporate respondent instead of at head office, which is where, in his view, such a matter ought to have been handled. In addition, the applicant submits that he was embarrassed at the manner in which the respondents required him to turn in his computer, keys and cell phone before escorting him off the premises in front of onlooking employees as if he was a “criminal”.

ANALYSIS

15Section 8 of the Code provides as follows:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

16In order to succeed in a claim of reprisal under the Code, the applicant would have to establish that the respondent did something with the intention of retaliating against him for claiming or enforcing his rights under the Code; instituting or participating in proceedings under the Code; or refusing to infringe another person’s rights under the Code: Noble v. York University, 2010 HRTO 878.

17In this case, and as noted above, the applicant submits that the respondent reprised against him contrary to the Code when it terminated his employment for refusing to infringe the rights of other people under the Code. The applicant contends that he refused to infringe the rights of others under the Code when he refused to follow the respondents’ instructions to “fire” other employees “for cause” (when there was no cause) and thereby deprive them of severance payments to which they would otherwise be legally entitled.

18Assuming, without finding, that the applicant could establish that the respondents terminated his employment because he refused to terminate employees in the manner allegedly directed, the applicant would still not be able to establish that the respondents retaliated against him for refusing to infringe others’ rights under the Code. This is because the right not to be terminated without cause and/or without severance pay – though it may exist elsewhere – is not a right under the Code. The Code prohibits discrimination and harassment with respect to employment on the basis of the prohibited grounds specified in the Code. It also prohibits reprisals which are linked to one of the things specified in s.8 of the Code. Contrary to the applicant’s suggestion, however, the Code does not give employees a general right to be treated in accordance with “labour laws”, a right not to be terminated without just cause, or a right to severance pay upon termination without cause.

19Accordingly, I find that the applicant has no reasonable prospect of success in proving that he refused to infringe on others’ rights under the Code when he refused to terminate the employment of other employees in the manner allegedly directed by the respondents. It follows from this that the applicant has no reasonable prospect of success in proving that the respondents reprised against him for refusing to infringe on the rights of others under the Code.

20In his Application, the applicant states that the respondents created a “poisoned work environment” for him. During the summary hearing, the applicant confirmed that this claim was “part and parcel” of his reprisal claim. That is, the applicant claims that the respondents created a poisoned work environment by reprising against him. Since the applicant has no reasonable prospect of success in establishing that the respondent reprised against him contrary to the Code, his claim of poisoned work environment must similarly fail. The applicant has no reasonable prospect of success in proving that the respondents poisoned his work environment by reprising against him since he has no reasonable prospect of success in proving that the respondents reprised against him in the first place.

21For the above reasons, I find that the Application has no reasonable prospect of success and the Application is dismissed accordingly.

22In light of my decision that the Application has no reasonable prospect of success, it is not necessary for me to determine whether the applicant is prevented from pursuing his Application on the basis of delay, pursuant to s.34 of the Code.