Barnes v. Bruce Stone Enterprises Ltd., 2012 HRTO 1879

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Clifford Barnes

Applicant

-and-

Bruce Stone Enterprises Ltd.

Respondent

DECISION

Adjudicator: Leslie Reaume
Date: October 3, 2012
Citation: 2012 HRTO 1879
Indexed as: Barnes v. Bruce Stone Enterprises Ltd.

APPEARANCES

Clifford Barnes, Applicant
Self-represented

Bruce Stone Enterprises Ltd, Respondent
Arthur Tarasuk, Counsel

Introduction

1This is an Application 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. The applicant self-identifies as a person with a learning disability. The applicant does not mention the nature of his disability in his Application but addresses this issue in his Reply.

2By Case Assessment Direction (“CAD”) dated May 7, 2011, the Tribunal, on its own initiative, scheduled this matter for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The hearing took place by telephone on August 27, 2012.

3The Summary Hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. The issue in a Summary Hearing is whether the 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.

4In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal observed that in some cases, the focus of the summary hearing will be on the legal analysis and whether the allegations could reasonably be considered to amount to a Code violation. In other cases, the focus will be on the applicant’s ability to point to evidence which is reasonably available which would demonstrate a link between the actions of the respondent and the prohibited grounds alleged by the applicant. The Tribunal also emphasized the importance of being attentive to the fact that in some cases of alleged discrimination, the respondent may be in possession of most or all of the evidence related to the applicant’s allegations and it may be appropriate to give the applicant the opportunity to acquire that evidence through disclosure and cross-examination of the respondent’s witnesses.

5As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17 the Tribunal does not have the power to deal with general allegations of unfairness and that there must be a basis for the allegations beyond mere speculation.

ANALYSIS

6The applicant was given an opportunity to make submissions to assist the Tribunal in determining whether the Application should proceed. Specifically he was asked to assist the Tribunal in understanding the connection between the respondent’s actions and his disability. The respondent also made submissions in support of dismissing the Application.

7The applicant started work for the respondent as a part-time tire installer on September 13, 2011. He alleges that after eight days of training, he was told that he was too slow and he was offered a position as a cleaner. When the applicant was asked how he interpreted the criticism that he was “too slow”, the applicant replied that he thought it meant that he was taking too much time to do his job.

8The applicant acknowledges that at no time did he advise the respondent that he had a learning disability which might account, in part, for the fact that it takes him longer to learn some tasks. He alleges that he told his employer that he needed more time to learn the job tasks but he did not alert his employer to the fact that he needed more time to learn because of a disability. The applicant was in the early stages of his training, thought he was doing well and found the criticism unfair.

9The applicant filled out employment related forms, one of which asked for information about any medical conditions that the respondent should be aware of. The applicant left that section of the form blank. In his Reply, the applicant explained that he did not think he should have to divulge information about his learning disability and that he was worried that the respondent would not keep him on if they were aware of it.

10The applicant indicated during the hearing that he is not comfortable with the legal language contained in decisions. Although the following principles are set out in a number of Tribunal decisions, I have cited the Ontario Human Rights Commission’s policy for ease of reference by the applicant. The Commission has published a policy on the duty to accommodate persons with disabilities in the workplace. The policy emphasizes the importance of providing individual accommodation in a manner that most respects the dignity of the worker. The policy sets out the duties and responsibilities associated with the accommodation process including the role played by the disabled person. According to that policy the disabled person is required to:

• advise the accommodation provider of the disability (although the accommodation provider does not generally have the right to know what the disability is);

• make her or his needs known to the best of his or her ability, preferably in writing, so that the person responsible for accommodation may make the requested accommodation;

• answer questions or provide information regarding relevant restrictions or limitations, including information from health care professionals, where appropriate and as needed;

• participate in discussions regarding possible accommodation solutions;

• co-operate with any experts whose assistance is required to manage the accommodation process or when information is required that is unavailable to the person with a disability;

• meet agreed-upon performance and job standards once accommodation is provided, work with the accommodation provider on an ongoing basis to manage the accommodation process;

• discuss his or her disability only with persons who need to know. This may include the supervisor, a union representative or human rights staff;

11In this case, the applicant did not advise the respondent that he had a disability which required accommodation nor is there evidence to support a finding that the employer ought to have known about the applicant’s disability without him disclosing it. While he indicated that he needed more time to learn certain tasks associated with his position the applicant did not inform his employer that this request was connected in any way to a disability. The applicant is not required to tell the employer precisely what his disability is, but the employee must disclose enough information to make it possible for the employer to create a suitable accommodation. There is no reasonable prospect of success as there is no evidence to support a claim that the actions of the employer are in any way connected to a prohibited ground under the Code. In these circumstances, I find that there is no reasonable prospect that the Application will succeed

12Accordingly, the Application is dismissed.