Michalczyk v. Sudbury Condo Corp #9, 2012 HRTO 1736

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Michalczyk

Applicant

-and-

Sudbury Condo Corp #9

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: September 14, 2012

Citation: 2012 HRTO 1736

Indexed as: Michalczyk v. Sudbury Condo Corp #9

APPEARANCES

Michael Michalczyk, Applicant

Self-represented

Sudbury Condo Corp #9, Respondent

Lynn Beavis, Representative

1This is an Application dated December 5, 2011 and filed 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.

2A summary hearing in this matter was held on May 9, 2012 to address two issues: (1) whether the applicant has a reasonable prospect of success in establishing discrimination because of disability; and (2) whether all or part of the Application should be dismissed as having already been appropriately dealt with in other proceedings, namely the proceedings before the Landlord and Tenant Board (“LTB”) and before an Employment Standards Officer (“ESO”).

3During the course of the summary hearing, the applicant made reference to medical documentation that had not been filed with the Tribunal or disclosed to the respondent. The applicant was afforded an opportunity to disclose and file this material. There were difficulties in obtaining this documentation from the applicant, although medical documentation ultimately was provided on May 29, 2012. The respondent was given an opportunity to make written submissions in response to this medical documentation, and the applicant was afforded the right to make written submissions in reply. The last written submissions were received from the applicant on June 13, 2012.

Background

4The applicant was employed as the Superintendent of a condominium building owned by the respondent in Sudbury, commencing on February 16, 2011.

5The applicant’s employment was terminated as a result of certain issues that arose on May 31, 2011, namely:

a. That the applicant failed to report for work on May 31, 2011 or notify anyone at the respondent about this absence;

b. That the applicant used the corporate credit card for personal use without authorization; and

c. That the applicant left with the active corporate cellular telephone without authorization.

6The respondent regarded these issues as a breach of trust going to the heart of the employment relationship and as grounds for dismissal for just cause, and so terminated the applicant’s employment effective May 31, 2011, although the formal letter of termination was not delivered to him until June 16, 2011. The respondent also commenced LTB proceedings against the applicant to have him and his family removed from his unit, in accordance with the provisions of the Residential Tenancies Act.

7The applicant’s position is that the events of May 31, 2011 were caused by a mental disability, and that the respondent was informed by his wife prior to the decision to terminate that he had suffered a mental breakdown and was in hospital.

8The applicant’s wife appeared before the LTB in response to the respondent’s notice to terminate the tenancy, and the LTB member made a decision extending the applicant’s ability to remain in the unit until mid-July 2011 as an exercise of discretion in light of all of the circumstances, including consideration of the applicant’s medical condition. This decision was upheld on review. At the review stage, the applicant, through his spouse raised the issue that the respondent had not accommodated the applicant’s disability to the point of undue hardship. The LTB found that, while the original decision did not specifically reference the Human Rights Code, it nonetheless considered the applicant’s medical condition in the exercise of discretion to delay the eviction.

9The applicant also filed a claim for termination pay under the Employment Standards Act, which was dismissed by an ESO on the basis that the applicant had engaged in wilful misconduct. This decision was not appealed by the applicant.

Reasonable prospect of success

10The applicant does not dispute that he absented himself from work on May 31, 2011, used a corporate credit card for personal expenses and to make a cash withdrawal, and took a corporate cellphone with him. The applicant asserts that this conduct was entirely out of character for him and was due to what he describes as a “major nervous breakdown”. Not only did the applicant absent himself from work without providing notice to his employer, but he also did not inform his wife or children that he was leaving. The applicant states that he did not get back into contact with his wife until June 9, 2011, at which time he was in Belleville and had no awareness as to how he had gotten there. The applicant returned to Sudbury on June 10, 2011 and was immediately hospitalized.

11The issue before this Tribunal is whether there is a reasonable prospect of the applicant establishing that his disability was a factor in the respondent’s decision to terminate his employment. In my view, this involves two distinct issues. First, there is an issue as to whether the applicant has a reasonable prospect of establishing through medical evidence that his disability caused or contributed to the conduct that led to his dismissal. And second, there is an issue as to whether the applicant has a reasonable prospect of establishing that the respondent was aware that he had a disability and whether his disability directly or indirectly was a factor in the decision to terminate his employment.

12With regard to the former issue, the applicant has filed medical documentation indicating that he was diagnosed with major depressive disorder and that he was admitted to hospital in June 2011 and under psychiatric care and treatment. While the medical documentation provided to date does not specifically address the applicant’s conduct on May 31, 2011 and whether this conduct was caused or contributed to by his mental disability, I note that the medical documentation states that the applicant did not have a psychiatric history until 6 to 8 months prior to hospitalization in June 2011, and that the symptoms became progressively worse such that they affected his work and function as a father and a husband. I also note that the doctor has indicated in this documentation that the applicant’s impulse control (difficulty with behavioural control) is unsafe and displays severe symptoms or signs and that his judgment gives rise to safety concerns and displays moderate symptoms or signs.

13If we were at the hearing stage in this matter, it may be open to the adjudicator to find that the medical documentation submitted would not in and of itself be sufficient to prove that the applicant’s conduct on May 31, 2011 was caused or contributed to by his mental disability. However, we are not yet at that stage of the proceeding. In my view, the applicant should be afforded an opportunity at an oral hearing to provide further medical evidence to support his position that his mental disability caused or contributed to the conduct that led to the termination of his employment, which would entail obtaining and filing a detailed medical report from his psychiatrist specifically addressing the conduct at issue and providing an expert medical opinion as to whether this conduct was caused or contributed to by the applicant’s diagnosed major depressive disorder and the symptoms he was displaying at the time of his hospitalization in June 2011.

14In light of the diagnosis of major depressive disorder made by the psychiatrist, the symptoms described in the medical documentation, the applicant’s own stated lack of awareness regarding his conduct or how he got to Belleville, his abandonment not only of his work but also of his wife and children and his hospitalization immediately following his return to Sudbury, I cannot reasonably conclude at this preliminary stage of the proceeding that the applicant has no reasonable prospect of establishing at a hearing that his mental disability caused or contributed to the conduct relied upon by the respondent to support his dismissal from employment.

15The next issue I need to address is whether there is a reasonable prospect of the applicant establishing that the respondent was aware that he had a disability at the time of the decision to terminate his employment and that his disability, either directly or indirectly was at least a factor in the respondent’s decision.

16The respondent asserts that the decision was made to terminate the applicant’s employment on May 31, 2011 due to his conduct on that date and at a time when it had no knowledge of any disability. This appears to me to be a matter in dispute between the parties. The evidence of the applicant’s wife, as set out in the Application, is stated to be that on May 31, 2011, when she became aware of the applicant’s absence and did not know what had happened, she notified the respondent’s property manager that the applicant’s whereabouts were unknown and that someone would need to cover the applicant’s job duties at the building. Later that day, it is stated that the applicant’s wife met briefly with the property manager, two members of the condominium board and the assistant building superintendent to hand over the master keys, at which time the applicant’s wife was told that the assistant superintendent would be covering the applicant’s duties until a decision was made as to the appropriate course of action.

17The following day, on June 1, 2011, the Application states that the applicant’s wife was told that she and the children would have to vacate the unit by June 30, 2011. Under the terms of the applicant’s employment contract with the respondent and pursuant to s. 93 of the RTA, the applicant’s tenancy terminates on the day his employment is terminated and he is required to provide vacant possession within one week after the tenancy is terminated. This appears to support the respondent’s position that the decision to terminate the applicant’s employment had been made at that time, prior to the respondent (or the applicant’s wife for that matter) having any knowledge of the applicant’s disability.

18The termination letter and the formal notice to terminate the applicant’s tenancy both state that the applicant’s employment was terminated “as of May 31, 2011”. However, the formal notice to terminate the applicant’s tenancy was not served by the respondent until June 10, 2011 and the termination letter is dated June 16, 2011. By this time, the applicant had been in contact with his wife on the evening of June 9, 2011. The Application states that the applicant’s wife contacted the respondent’s property manager the following morning, on June 10, 2011 at 10 a.m., and told the property manager that the applicant had had a mental breakdown, was in Belleville and had no idea how he had gotten there or how long he had been there, and was coming back to Sudbury to be taken to the hospital. The Application further indicates that the applicant’s wife told the property manager that she was worried about the applicant’s mental state and felt that he was suicidal.

19The Application states that, shortly after the applicant returned to Sudbury on June 10, 2011, the applicant’s wife received a telephone call from the treasurer of the condominium board saying that the police would be called if the applicant did not leave the building immediately. The Application states that the applicant was taken to the hospital by his wife, who returned to the building late in the evening of June 10, 2011 to find the formal notice of termination of tenancy served under the door of the unit.

20The Application states that the applicant’s wife spoke with the president of the condominium board the next day, on June 11, 2011, and explained the circumstances of the applicant’s disappearance, his mental state, and that he was currently hospitalized for treatment. This was five days prior to the date of the termination letter of June 16, 2011.

21I appreciate the respondent’s position is that it made the decision to terminate the applicant’s employment on May 31, 2011 prior to having any knowledge that the applicant had a mental disability or that his conduct may have been attributable to any mental disability, and that there is support for this position in the material before me. However, in light of the fact that the evidence of the applicant’s wife is stated to be that she informed the respondent’s property manager of the applicant’s mental condition on the morning of June 10, 2011 and also informed the president of the board of directors on June 11, 2011 together with the fact that the formal notice to terminate the tenancy was not served until June 10, 2011 after the stated discussion with the property manager and the letter of termination of employment was sent on June 16, 2011 after both discussions, there seems to be at least some credible basis for dispute as to precisely when the decision to terminate was finally made and whether the respondent was aware that there was a mental health issue involved at that time. For that reason, I cannot reasonably conclude that the applicant has no reasonable prospect of proving that his mental health issue was known to the respondent at the time the ultimate termination decision was made and may have been a factor in that decision.

22The respondent has raised the issue that it was never provided with any medical documentation to support that the applicant had a disability at any time up until the applicant provided medical documentation following the summary hearing in this matter. In this regard, I note that the applicant has provided a handwritten medical note from his psychiatrist dated June 16, 2011 stating that the applicant was being treated as an in-patient at the hospital since June 10, 2011 and that his date of discharge was undetermined. It is not clear from the materials whether the applicant’s position is that this was provided to the respondent prior to receiving his letter of termination. In any event, as addressed above, the Application states that the applicant’s wife raised the applicant’s mental health issues with the respondent prior to receipt of the formal notice of termination of tenancy and prior to the formal notice of termination of employment. In my view, the veracity of the stated evidence of the applicant’s wife and whether or not this is sufficient to charge the respondent with knowledge of the applicant’s disability prior to termination is a matter best determined at a hearing on the merits, and is not a proper basis to dismiss this Application at the stage of a summary hearing.

23Accordingly, I am not satisfied that there is no reasonable prospect of success, and accordingly am not prepared to dismiss the Application at this stage of the process.

Section 45.1 – proceedings before LTB and ESO

24Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

25In Campbell v. Toronto District School Board, 2008 HRTO 62, this Tribunal held that it was helpful to consider s. 45.1 in two parts: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the application.

26Since the Campbell decision, the Supreme Court of Canada has released its decision in British Columbia (Workers’ Compensation Board) v. Figliola, [2011] S.C.R. 422. This Tribunal has determined that the analysis adopted in Figliola applies in Ontario and binds this Tribunal: see Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297 at para. 25. As a result, in considering whether the other proceeding appropriately dealt with the substance of an application, this Tribunal may not evaluate the procedural or substantive correctness of the other proceeding: Figliola at para. 38.

27It is clear that a hearing before the Landlord and Tenant Board (“LTB”) is a “proceeding” within the meaning of s. 45.1: see for example John v. Gateway Property Management Corporation, 2009 HRTO 2243 and Moyal v. Walmer Flats Property Management, 2010 HRTO 877. A proceeding before an Employment Standards Officer (“ESO”) also has been determined by this Tribunal to be a “proceeding” within the meaning of s. 45.1: see Poirier v. MacLean Engineering & Marketing Co., 2010 HRTO 1672.

28The next question is whether the other proceeding appropriately dealt with the substance of the Application. I will first address the LTB proceeding. As acknowledged by the respondent’s representative, the LTB had no jurisdiction to determine whether the applicant experienced discrimination in relation to the termination of his employment. The LTB’s jurisdiction under s. 94 of the RTA is to consider an application by a landlord if a superintendent fails to vacate the premises within one week of the termination of his or her employment. As a result, there is no proper basis upon which to find that the LTB proceeding dealt with the substance of the human rights application, which alleges discrimination in employment because of disability arising out of the termination of the applicant’s employment.

29I appreciate that as part of the claim made in the Application, the applicant is claiming compensation not only for lost wages, but for the cost of moving out of his unit in the building. In this proceeding, if the applicant is able to establish that his disability was a factor in the termination of his employment, this does not necessarily mean that he was entitled to remain as the building superintendent and continue to live in the unit. In ordering a remedy, the Tribunal would need to consider on a balance of probabilities what more likely than not would have occurred had the applicant’s disability not been a factor in the termination. If this Tribunal were to determine that the applicant’s employment more likely than not would have been terminated in any event even without consideration of the discriminatory factor, then the respondent still would have been entitled to require him and his family to vacate the premises and I agree that no claim for moving costs could be sustained. To this extent and only to this extent, I find that the LTB considered the applicant’s medical condition and appropriately dealt with the issue of how long he and his family should be entitled to remain in the unit following termination of his employment.

30On the other hand, if the Tribunal were to determine that the applicant experienced discrimination because of disability and his employment more likely than not would not have been terminated if the discriminatory factor had not been considered, then this Tribunal may find that the applicant ought not to have been terminated and therefore ought not to have been required to vacate the premises. In such circumstances, a claim for moving costs would not be barred by the decisions in the LTB proceeding, as those decisions were made on the basis that the applicant’s employment had lawfully been terminated.

31I will next address the decision made by the ESO under the Employment Standards Act. In the materials before me, I was provided with a one page letter from the ESO entitled “Reasons for Decision” that states in its relevant portion:

Having reviewed the events and circumstances that led to Mr. Michalczyk’s termination, it is my determination the employer is not in contravention of Section 61 of the Employment Standards Act, 2000 in that termination pay is not owed to the claimant, that Mr. Michalczyk was exempted to notice of termination or termination pay by virtue of Ontario Regulation 288/01 Section 2.(1)3 which states: Employees not entitled to notice of termination or termination pay

3. An employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.

32I was informed by both the applicant and the respondent that to their knowledge, these were the entirety of the reasons provided by the ESO. In my view, there is no indication in these reasons that the applicant’s mental disability or his rights under the Code were considered in reaching this conclusion. Accordingly, in my view, these reasons by the ESO do not provide a sufficient basis upon which I can find that she appropriately dealt with the substance of the Application before this Tribunal.

33I appreciate that the ESO’s reasons represent a conclusion by her that the applicant engaged in “wilful misconduct, disobedience or wilful neglect of duty”. But there is nothing in the ESO’s reasons to indicate that she considered the applicant’s allegation that he suffered from a mental disability at the time, whether this mental disability caused or contributed to the conduct relied upon to terminate his employment, or whether the nature of his mental disability rendered him incapable of engaging in “wilful” misconduct, disobedience of neglect of duty.

34Further, as stated in Daginawala v. SCM Supply Chain Management Inc., 2010 HRTO 205 at para. 24, even if there has been a finding of wilful misconduct under the ESA, it is still open to an applicant to try to establish that, notwithstanding any such misconduct, a prohibited ground of discrimination nonetheless played a role in the decision to dismiss him.

35For all of these reasons, I find that neither the LTB proceeding nor the proceeding before the ESO appropriately dealt with the substance of the Application before this Tribunal, except only to the limited extent outlined in para. 29 above.

Next Steps

36As a result of this Interim Decision, this matter shall continue to proceed in the Tribunal’s process. In this regard, I note that the applicant has indicated that he is interested in mediation, but the respondent has not indicated such an interest. If, in light of this Decision, the respondent is now prepared to pursue mediation, then it shall advise the Tribunal within the next 7 calendar days from the date of this Decision and an appropriate date for mediation will be scheduled. If the respondent is not interested in pursuing mediation or does not respond within 7 calendar days, this matter will be scheduled for a hearing in the normal course.

37I am not seized.