HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sivabalasingam Kandiah
Applicant
-and-
Morrison Lamothe Inc.
Respondent
DECISION
Adjudicator: Alison Renton
Indexed as: Kandiah v. Morrison Lamothe Inc.
APPEARANCES
Sivabalasingam Kandiah, Applicant
Subram Shan, Representative
Morrison Lamothe Inc., Respondent
Hadiya Roderique, Counsel
Introduction
1This is an Application filed on June 30, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability, record of offences, and reprisal. The applicant is a unionized employee. Despite receiving the Application, the union has not participated in these proceedings.
2In his Application, the applicant quite concisely sets out allegations of discrimination in the workplace on three grounds. The remainder of his Application essentially describes the impact that the alleged harassment and discrimination has had on him. The three issues are:
on April 21, 2010, he had a workplace accident and his supervisor refused to call an ambulance or taxi so that he could go to the hospital. Instead, a colleague called a taxi and while the applicant was leaving work, his supervisor instructed him to clock-out with the punch card;
on November 25, 2010, he was issued a disciplinary letter, the contents of which he disagrees;
at some point in the spring of 2011, the applicant was no longer assigned light-duty work because he was not meeting the seniority criteria and was issued a lay off letter.
3The respondent filed a Response as well as a Request for a Summary Hearing (“Request”). In its Request, the respondent submitted that it is a frozen food manufacturer whose business is seasonal in nature with slow seasons running from January to July of each year which results in plant closures. The applicant, the respondent submits, is a general labourer whose terms and conditions are covered by a collective agreement entered into between the respondent and his union.
4Specifically in relation to the applicant’s allegations, in its Request, the respondent states:
the April 21, 2010 allegation was untimely; alternatively, the respondent gave the applicant a taxi chit to seek medical attention when it appeared that the applicant’s leg, which he alleged occurred when it fell off of a chair, was at most slightly injured as the applicant was able to walk on it;
the November 25, 2010 letter was issued not because the applicant was absent from work, but because the applicant failed to call in to report his absence contrary to the respondent’s attendance policy;
the applicant’s layoff and recall were because of his seniority ranking, not because of the applicant’s disability, as the collective agreement requires that these be done in seniority order; to the extent that more junior employees were recalled ahead of the applicant, it was because they were recalled to a different classification or position for which the applicant was not qualified;
the applicant has not provided any details about a record of offences;
the applicant has not established reprisal. The applicant wrote to the respondent’s President with respect to issues raised in his Application and said that he would file an Application with the Tribunal if the issues were not addressed by the respondent. The respondent wrote to the applicant addressing his issues; and,
the allegations, even if accepted as being true, do not constitute a violation of the Code.
5The Tribunal issued a Case Assessment Direction (“CAD”) dated October 31, 2011, granting the respondent’s Request and stating that the Tribunal would schedule a summary hearing (“the hearing”) by teleconference. The Tribunal directed the applicant to proceed first and to be prepared to answer the respondent’s arguments raised in its Request. The parties were directed to deliver to each other and file with the Tribunal copies of any further documents or cases they intended to rely upon no later than 14 days prior to the hearing.
6Both parties filed additional materials before the hearing. In the applicant’s materials, he submitted that he wanted to amend his Application to include that his layoff in December 2011 was also due to his disability. He also included: a CD with voice recordings on it; correspondence from the respondent to him dated August 31, 2009 and November 25, 2010; an undated letter written to his representative from a lawyer with the Human Rights Legal Support Centre; a doctor’s note dated April 20, 2010; and a work assignment sheet dated November 17, 2011. The respondent filed case law.
7Pursuant to a Notice of Summary Hearing (“the Notice”) issued by the Tribunal on December 9, 2011, the hearing was scheduled to commence at 1:30 pm on March 8, 2012 by teleconference. The applicant requested that a Tamil interpreter translate the hearing for him. At 1:30 pm, only the respondent was present on the call. At 1:50 pm, the applicant and his representative, Mr. Shan, entered the call. At 1:55, the Tamil interpreter entered the call and the hearing then commenced.
8About an hour after the hearing commenced, unexpectedly loud music, which seemed to come from one of the party’s telephones, interrupted the hearing for approximately 10 minutes. Shortly after the hearing resumed, Mr. Shan unexpectedly left the call and I asked the applicant whether or not he wanted to continue in Mr. Shan’s absence given that he was the applicant’s representative. The applicant indicated that he wanted to proceed in Mr. Shan’s absence with continuing Tamil translation. Just after giving this indication, Mr. Shan returned to the summary hearing call and the hearing resumed again.
9Despite explaining several times during the hearing that its purpose is to determine whether the applicant’s allegations have a reasonable prospect of success and that I was not determining whether or not he had been discriminated against, the applicant provided and attempted to provide details about the alleged discrimination that he alleges took place. His submissions were confusing and disjointed and sometimes were not in response to questions that the Tribunal asked. Further, during his submissions, the applicant did not specifically address the points that were raised in the respondent’s Request despite being directed to do so by the Tribunal in the CAD.
10The respondent made submissions based upon the points it raised in its Request, as set out in para. 4 above, and based upon the case law that it filed with the Tribunal.
Law and Analysis
11Rule 19A.1 of the Tribunal’s Rules of Procedure provides:
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.
12In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paras. 8-10:
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.
13Based on the Application, the relevant provisions of the Code are as follows:
- (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or an agent of the employer of by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.
- 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.
10(1) In Part I and in this Part,
“record of offences” means a conviction for,
(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked; or
(b) an offence in respect of any provincial enactment.
34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
14In determining whether an Application has no reasonable prospect of success, an Application must at least contain sufficient facts that, if accepted as true, could reasonably lead to a finding of discrimination. Otherwise, an Application has no reasonable prospect of success at a hearing and will be dismissed. See Macyshyn v. Toronto Catholic District School Board, 2011 HRTO 1068.
The April 21, 2010 Allegation
15On its face, I find that the April 21, 2010 allegation has no reasonable prospect of success. The applicant’s argument appears to be that the respondent did not do enough to assist him in getting medical attention on April 21, 2010 since he alleges that a colleague called for a taxi when his supervisor refused to call for an ambulance or taxi. I find that this assertion, alone, does not constitute discrimination and the applicant is unable to point to anything further which could indicate that this constitutes discrimination with respect to disability. The applicant also failed to address the respondent’s explanation that the supervisor provided the applicant with taxi fare to seek medical attention. Accordingly, this allegation cannot proceed.
16With respect to his assertion that his supervisor instructed him to “clock-out” with the punch card upon leaving the facility, during the hearing the applicant submitted that his supervisor also told him “no permission” and he, his supervisor, could not grant permission. When asked by the Tribunal how this amounted to discrimination on the basis of disability, rather than respond to the question, the applicant stated that it occurred within one year of undergoing an operation. In his Application, he identified August 19, 2009 as the date upon which he had a “major accident”, the details of which were not provided.
17I find the allegation about the “clock-out” to be particularly confusing. It is unclear how a “no permission” comment could be considered a violation of the Code and the Tribunal is left to speculate whether “no permission” was a prohibition against the applicant leaving the premises. However, the applicant did not allege that he was disciplined for leaving the workplace on this day or take issue that he was or was not paid by the respondent once he left work. Even if the applicant did raise this assertion within one year of his “major accident” in 2009, the applicant has not been able to point to a connection between the clocking-out allegation and a violation of the Code and this allegation cannot proceed.
18In the alternative, I find that the April 21, 2010 allegation is untimely and was raised after the mandatory one year limitation period of section 34(1) of the Code. By this, it means that the Application must be filed within one year of alleged discriminatory conduct, rather than one year from the date of the applicant’s “major accident” in 2009. If an applicant seeks to rely upon an untimely allegation, he or she must satisfy the Tribunal that the delay in raising the allegation was incurred in good faith pursuant to section 34(2) of the Code. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.
19The respondents raised in their Response and their Request that this allegation is untimely. The applicant did not address the untimeliness issue either in the materials that he filed before the hearing or during his main submissions during the hearing.
20During the hearing, after the respondent made its submissions including that the April 2010 allegation was untimely, the Tribunal told the parties that the Code contains a mandatory one year limitation period and the April 2010 allegation appeared to be filed outside it. The Tribunal said that an applicant can rely upon allegations beyond the one year limitation period if there is good faith to explain the delay in raising the allegation and the Tribunal asked the applicant to identify the reason for the delay in raising in April 2010 allegation. In response, the applicant stated that he was not aware of the one year limitation period and did not know that he could file an Application until he contacted the Human Rights Legal Support Centre. Then he filed his Application.
21The Tribunal has stated on many occasions that ignorance of one’s rights is not sufficient, by itself, to establish good faith as required within the meaning of section 34(2) of the Code. See, for example, Lutz v. Toronto (City), 2009 HRTO 1137. In the absence of anything further, I find, in the alternative, that the applicant has not provided a good faith explanation for his delay insofar as the April 21, 2010 allegation is concerned. Accordingly, and in the alternative, this allegation is untimely and cannot proceed.
November 25, 2010 letter
22The applicant states that he received a letter dated November 25, 2010 “…presenting me with a disciplinary action which I do not agree with”. He asserts that it is “reprimanding as well as harassing me” and “this action by the management is a violation of one of my rights to work with dignity and relax at home after an accident”. Indeed, the focus of his submissions was on the medical advice that he received to remain off work, rather than addressing the respondent’s position that the letter was issued not because of his disability but because the applicant failed to call in to report his absence as required by the respondent’s attendance policy. The applicant did not provide any submissions about the latter point.
23The applicant is unable to point to any specific evidence in relation to his assertion that the respondent discriminated against him in relation to his November 25, 2010 letter apart from claiming that it was discriminatory on the basis of disability. The letter, a copy of which was provided by the parties before the hearing, says it serves as a written reprimand because the applicant is not meeting the expectations of the respondent’s attendance policy. The respondent says that it was issued because the applicant failed to call in to report his absence, and the applicant has failed to respond to this point. I find that the applicant’s bald assertion has no reasonable prospect of success as what he alleges does not amount to a Code violation and this part of the Application is dismissed.
Lay-offs and Recalls
24On his Application, the applicant wrote:
After my major accident of August 19, 2009, I have been assigned a Light-duty job. Incidentally, the accident mentioned in (1) above [the description of how the accident happened] during this assignment. I was continuing in this setup for a while and suddenly, I have been asked to stay away from duties due to a fact, which I think is a thought out reason to stop me from working. The reason presented is that I am not meeting a “Seniority Criteria” to continue working in this setup. Subsequently, I was sent a Letter of Lay-off and am not working since then. This is again a violation of my right to work lawfully and also, I feel it as a Human Rights Code violation, as well. This happened during the Spring of 2011.
25In the materials filed before the hearing, the applicant provided a CD which he claimed was “evidence” for May 20, 2011, and a work assignment sheet for November 17, 2011. Further, in these materials, he requested that his Application be amended to “indicat[e] the fact that my December 2011 layoff was also due to my disability”, but provided no details about a December 2011 layoff. He did not provide dates as to when he performed light duty work, was laid off, recalled, and laid off again.
26During the hearing, the Tribunal specifically asked the applicant to describe the lay-off and his allegations about seniority and how they amount to discrimination within the meaning of the Code. The applicant submitted that the company should not lay off employees according to their seniority, but rather should find light work for them. He further stated that he performed light duty work for an unspecified three months during which time the respondent overlooked seniority. Then, he alleged, the respondent told him that he did not have the seniority to do the work and laid him off. The respondent refused to confirm this in writing to him he alleged.
27Further during the hearing, the applicant alleged that he was 117 on the seniority list and that a worker junior to him, who was 122 on the seniority list (“the 122 employee”), was permitted to work while the applicant was laid off. This was around May 19, or 20, 2011 he asserted. The applicant also alleged that workers who were 202 and 212 on the seniority list were permitted to work on November 17, 2011 while he was laid off. The applicant relies upon the CD with the voice recordings in support of his allegations for May 19 or 20, 2011, although he did not provide any commentary about the information on the CD, and the work assignment sheet dated November 17, 2011 in support of his November 2011 allegation.
28The applicant did not address the respondent’s submission that layoffs and recalls are governed by the collective agreement and if junior employees were provided with work, it was for a position for which the applicant was not qualified and/or on a shift for which the applicant had not indicated that he was willing to work.
29The collective agreement, a copy of which was provided by the respondent, provides at Article 11.02 seniority, skill and ability shall be considered in cases of lay-off and recall from lay-off. It also states that seniority shall govern where skill and ability are relatively equal.
30I have listened carefully to the CD which the applicant has provided. There are two files on it, one in MP3 format and the other in wave sound, and both contain the same information, someone speaking. From reviewing the November 17, 2011 work assignment sheet that the applicant also provided, it appears that the speaker is reading out work assignments for the respondent’s various departments for Friday, May 20. I note that in 2011, May 20 fell on a Friday. The speaker states the department number, department, start of shift time, and, seemingly, first name of employee. An individual with the same first name as the 122 employee, is named for department 141, Housekeeping, Ameripak, commencing at 12:30 pm, but no last name is mentioned. The recording is difficult to understand as the speaker’s voice is distorted.
31It is unclear whether the worker with the same first name as the 122 employee is the 122 employee and the applicant did not make any submissions about this. Further, even it is the 122 employee, other than indicating that this employee was assigned to work in the housekeeping department commencing at 12:30 pm, there is no information on the CD about what position this employee would be working. There is no information about May 19, 2011 to which the applicant referenced during the hearing as being a possible date of the 122 employee’s recall. More importantly, the applicant does not provide any information or suggest any evidence to substantiate his allegation that he was not recalled for a discriminatory reason. As noted above, the collective agreement requires that skill and ability, in addition to seniority, be considered in recalling someone from layoff and the applicant has failed to establish that this is the evidence that could suggest he had, in addition to being more senior than the 122 employee, more skills and ability than the 122 employee. Even if he was not recalled in order of seniority, this does not establish a link to a prohibited ground under the Code in these circumstances where seniority is not the only criteria for being recalled. Accordingly, I find that the applicant’s allegations pertaining to spring 2011 have no reasonable prospect of success and this part of the Application is dismissed.
32With respect to the November 17, 2011 work assignment, the document that the applicant submitted clearly shows that two employees with less seniority but in the same classification of general labourer were assigned work on this day in the sanitation department commencing at 9:30 pm. However, other than saying that they were junior to him in seniority and that he should have been recalled because he had more seniority, the applicant was not able to articulate any discriminatory reasons as to why he was not recalled and assigned to work on this day. He did not respond to the respondent’s assertion that work in the sanitation department required specialized training as it required the handling of chemicals, which the applicant had neither requested nor received, and that the midnight shift that the more junior employees worked was not one to which the applicant stated that he wanted to work.
33This information, combined with the fact that the collective agreement permits employees to be recalled considering their seniority, skill and abilities, leads me to the conclusion that the applicant’s allegations about November 17, 2011 have no reasonable prospect of success. Accordingly, this part of the application is dismissed.
34With respect to the December 2011 layoff, the only information the Tribunal has about that is in the applicant’s materials filed before the hearing. He wrote, “I, hereby, also request you to amend my application indicating the fact that my December 2011 layoff was also due to my disability”. The applicant did not file a proper request to amend his Application in the form of a Request for Order During Proceedings. Despite this, the applicant provided no details of this new allegation to have his Application amended and provided no details about this assertion during the hearing. Accordingly, the Application is not amended to include a December 2011 layoff.
REPRISAL
35With respect to reprisal, the Tribunal stated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 23, “Reprisal under s. 8 of the Code must be a reprisal for the assertion of human rights and there must be an intention to reprise for that reason”. See also Noble v. York University, 2010 HRTO 878 at para. 31.
36On his Application, the applicant claims that “These three events have violated my rights to work as a free and independent person. Also, I feel they are …. reprisal against my freedom”. In his submissions during the hearing, and in response to the Tribunal asking him how he was reprised against, the applicant took issue with some of his work assignments, claiming that he was assigned work that apparently was outside of his medical restrictions which constituted, he asserts, reprisal.
37Attached to the respondent’s Request was a letter dated June 6, 2011 that the applicant wrote to the respondent’s CEO. In that letter, the applicant claims that he is a disabled person as a result of workplace accidents, and raises the same issues as those raised during the hearing, apart from the November 17, 2011 work assignment to more junior employees and the unspecified work assignments noted above. He writes, “Due to the grievances I am going through now, I have an intention to approach the Human Rights Tribunal (HRT) of Ontario, to resolve some issues”. The respondent responded to the applicant by letter dated June 20, 2011 addressing the issues that he raised.
38The applicant has not provided any evidence to support that the raising of the issues in his Application, apart from the November 17, 2011 work assignment and the apparently improper work assignments, both of which are not in the Application, was related to him claiming or attempting to enforce a right under the Code. In reaching this conclusion, I note that apart from the November 17, 2011 allegation and the new allegation about improper work assignments, the other allegations which have been addressed above had already occurred before he wrote his June 6, 2011 letter. Further, he has not asserted that he raised a Code concern with the respondent prior to writing the June 6, 2011 letter.
39With respect to the new allegation about the improper work assignments, the applicant did not seek to amend his Application to include this allegation and the allegation itself is vague, unparticularized and without any time reference. Despite an opportunity from the Tribunal to provide details, with such little information, this new allegation also has no reasonable prospect of success. Most importantly, the applicant failed to specify how he asserted his human rights with the respondent following which he was assigned improper work assignments.
40Finally, the applicant has not been able to point to anything by the respondent to indicate an intention to reprise against him. While he did raise the November 17, 2011 work assignment, when he was asked during the hearing by the Tribunal how he alleged discrimination on the basis of reprisal, the applicant proceeded to provide details about being provided with work that was outside of his restrictions and said nothing about failing to be recalled subsequent to June 6, 2011. On the facts as alleged by the applicant, there is no reasonable prospect that the respondent reprised against the applicant.
Record of Offences
41Despite being asked specifically by the Tribunal about what allegations he has in relation to “record of offences”, with the Tribunal reading out the definition during the hearing, the applicant provided details of his medical condition and the nature of his job duties. He did not provide any answers to the Tribunal’s questions in relation to “record of offences”. Further, in response to questions on the Application form, A36 and A37, asking whether he believed he was discriminated against on the basis of a pardoned record of offences under a federal law (Criminal Code offence) or under a provincial law (such as the Highway Traffic Act), the applicant answered “no” for both.
42The applicant has not provided any evidence to support an assertion that the respondent harassed or discriminated against him on the basis of record of offences. Accordingly, this part of the Application has no reasonable prospect of success and is dismissed.
conclusion
43In my view, on these facts, the Application has no reasonable prospect of success on the grounds of disability, record of offences and reprisal. Accordingly, I find that this Application has no reasonable prospect of success.
Order
44The Application is dismissed.
Dated at Toronto, this 12th day of September, 2012.
“Signed by”
Alison Renton
Vice-chair