Harpreet Gulri v. CREIT Management L.P., 2012 HRTO 1884

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Harpreet Gulri

Applicant

-and-

CREIT Management L.P.

Respondent

DECISION

Adjudicator: Kevin Cleghorn

Date: October 4, 2012

Citation: 2012 HRTO 1884

Indexed as: Gulri v. CREIT Management L.P.

APPEARANCES

)

Harpreet Gulri, Applicant ) Self-represented

)

)

CREIT Management L.P., Respondent ) Karen M. Sargeant, Counsel

)

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of age. The Application alleges that the applicant experienced discrimination when his employment was terminated specifically due to his age.

ISSUES FOR DETERMINATION

2I must determine the following after consideration of all of the evidence:

Was the applicant’s age a factor in the decision by the respondent to terminate him from his employment?

FACTS AND BACKGROUND

3The applicant was born and raised in India. He completed his Bachelor of Commerce degree at Guru Nank Dev University in 1987. He had commenced, but did not complete, his Master’s degree in Commerce at Guru Nank Dev University. After living and working as an accountant in Canada and India at various times, including time spent as a property developer in India, he returned to Canada in 1996. The applicant eventually re-joined the accounting profession in 1997, working for, among other companies, Famous Players and Standard Life. After four years of property accounting experience, he was hired by the respondent as a property accountant on September 15, 2008.

4The applicant was immediately responsible for a portfolio of six properties, all in or around the Montreal area. He considered himself to have done well with his responsibilities from the outset. His performance review in 2008, overall, was noted as “very good”. He indicates that his supervisor was very happy with him.

5The applicant testified that a re-organization was done by the respondent upon the departure of a senior accountant, Brian Chan-Chue. The applicant volunteered to assume responsibility for the more complex portfolio previously handled by Mr. Chan-Chue. As a result, the portfolio handled by the applicant went from six to nine properties. His workload remained the same until June or July of 2009 when the accounting department was split into two areas: property accounting and lease accounting. The applicant remained working as a property accountant, handling 12 to 14 properties in his portfolio as of July, 2009. He maintains that he handled his properties successfully and delivered results in a timely manner. His performance review for 2009, overall, categorized his performance as “good”.

6The applicant was terminated from his employment on April 5, 2010. He cites six employees who were terminated by the respondent in 2010 (the parties have agreed to not specifically name the employees). The average age of those terminated employees was 54.83 years. The age range of those terminated employees was 43 years of age to 61 years of age. The applicant was 43 years of age at the time of his termination. He further cites four newly-hired employees in 2010 whose ages ranged from 34 years of age to 36 years of age. He claims that this pattern of hiring demonstrates age discrimination. He states that age discrimination must have been a factor in the decision to terminate him as he was doing a good job for his employer.

7On cross-examination, the applicant conceded that some of his job duties were re-assigned to lease accountants in summer of 2009. He acknowledged that the number of properties assigned to all property accountants increased at that time. He did not know whether the number of property accountants employed by the respondent has remained the same since then. He acknowledged that there was specific criticism of his work in his 2009 performance review but disputes the materiality or significance of some of that, e.g. that he was late processing invoices by two days. He stated in his 2009 performance review that if his work load was not reduced that the quality of his work might suffer.

8The applicant conceded that although he had signed an acknowledgement that he had read all of the respondent’s employment policies that he had not in fact read them. He acknowledged that he had made vacation requests that were not technically in accord with the vacation policy but that he had received authorization for his various requests. He has no reason to dispute the respondent’s information that the average age of its employees was 44.60 years on a company-wide basis and 40.15 years for its head office and Ontario-based employees in 2010. He has no reason to dispute the respondent’s information that the average age of its employees was 43.96 years on a company-wide basis and 42.51 for its head office and Ontario-based employees in 2011.

9The applicant had no knowledge that two employees, one 61 years of age and the other 52 years of age, were replaced by two employees who were 58 years of age and 47 years of age. He could not dispute that his portfolio was distributed to other employees and that he was not replaced after his termination. He was not aware that five of the nine property accountants retained by the respondent after his termination were older than he was at the time. He was also not aware that none of the four newly- hired employees he identified on his list were hired to replace the six terminated employees. He had no knowledge that employees hired by the respondent in 2010 and 2011 were, in some instances, older than him. The applicant conceded that he had sought to recover his termination pay, overtime pay and other entitlements at the time of termination of his employment, threatening to pursue matters before this Tribunal if he did not receive same. His request for the additional monies made no reference to age discrimination as the basis for his pursuit of any such remedy before this Tribunal.

10Elizabeth Schnull testified on behalf of the respondent. She is the controller of property accounting for the respondent and has worked there since June 30, 2009. She was responsible for implementing a re-organization of the accounting department for the respondent from the outset of her hiring.

11She cited various examples of the applicant’s deficiencies as an employee. Specifically, she noted that he had missed deadlines, made late vacation requests and had attitude issues. There were also concerns about his work ethic. Four negative comments were highlighted from his 2009 performance review relating to the above-mentioned concerns. While the performance of the applicant was not sufficiently poor to justify a dismissal for cause, he was designated for termination in the course of the re-organization of the respondent. The re-organization involved the dismissal of the three weakest accountants, one of which was the applicant. The applicant’s performance was identified as being weaker than the other accountants in the office, although not sufficiently poor as to justify a termination for cause. The plan was to replace one senior (the applicant) and two junior accountants with two new senior accountants. This was confirmed in a memorandum written by Ms. Schnull to Tim McSoley, the Vice-President and Chief Financial Officer of the respondent, on January 26, 2010. The belief was that the staffing changes would increase efficiency by reducing the staffing complement without impacting productivity. Ultimately, only one senior accountant was hired to replace the two junior accountants and the applicant was not replaced. Her evidence is that the respondent has, in fact, increased the number of properties in its overall portfolio but has not added any additional property accountants to its staff. Age was never a factor in any of the hiring and firing decisions of the respondent, according to her.

12Sylvie Lourenco also testified on behalf of the respondent. She is the manager of human resources for the respondent. She confirmed that the respondent has policies in relation to being an equal opportunity employer and a Code of Conduct which prohibits discrimination in employment practices and decisions on the various grounds outlined in the Code, including, but not limited to, age. She states that the applicant made inappropriate vacation requests at various times in the course of his employment. He did receive all appropriate entitlements at the time of his termination, however.

13She confirmed the information put to the applicant on cross-examination. Specifically, she outlined which employees had been replaced and the ages of the new hires taking over for them at the time of the applicant’s termination. Three of the employees on the applicant’s list were terminated and not replaced; two of them were replaced by individuals older than the applicant (one was 58 years of age and the other was 47 years of age). There was no indication as to whether the sixth employee was replaced or not. She also verified the average ages of the employees employed by the respondent in 2010 and 2011. Certain employees were terminated because their positions became redundant and others were terminated for performance reasons. She also confirmed that none of the four younger hires on the list prepared by the applicant had replaced any of the six older employees on the same list.

14Ms. Lourenco states that employees younger than the applicant were terminated by the respondent in 2010 and 2011. Employees older than the applicant, including several in their 50’s and 60’s, were hired by the respondent in 2010 and 2011. She also maintains that the respondent has numerous employees over the age of 50 and several over the age of 60.

15Exhibits 1 through 26 were filed on consent of the parties, all of which were documents provided by the respondent. Exhibits 25 and 26 consisted of the witness statements of Ms. Schnull and Ms. Lourenco, which became their examination-in-chief, also on consent of the parties. Exhibit 20 is a hand-written note of Ms. Lourenco dated April 1, 2010. It confirms her testimony that if the respondent had decided to keep one of the three accountants who were ultimately terminated in April, 2010 that her recommendation was to retain the 63-year-old property accountant, and not the applicant.

THE LAW

16Section 5 of the Code provides as follows:

5. (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.

17The sole issue is whether the applicant’s age played any role or was at all a factor at the time of his termination from employment. The applicant must prove on the balance of probabilities that the respondent did indeed discriminate against him based on his age.

18It is well-established in human rights law that the protected ground need only be one factor in the decision made that adversely affected the applicant; it does not have to be the only or primary reason: see Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252.

19The respondent’s decision to terminate the applicant’s employment when he believed that he was performing well may raise justifiable concerns in his mind that there was another basis for his termination. The sole question is: was the applicant’s age in any way a factor in the decision to terminate his employment?

20Much of the evidence and facts in this case were not in dispute. The respondent asserts that the decision was based on legitimate business and performance reasons and these were not a pretext for discrimination. I agree, and I find the testimony of the respondent’s witnesses credible. I find that the respondent has established that the decision to terminate the applicant’s employment was a business decision in the context of a re-organization. This is supported by the totality of the respondent’s actions in terms of terminating and/or laying off other employees and re-assigning responsibilities. There is no evidence that other employees who were terminated the same as the applicant were subsequently hired back or that new employees were hired in their stead based upon their respective ages. There is no evidence, save for the applicant’s suspicions, that the applicant’s age was a factor in the decision, directly or indirectly. The respondent has provided a non-discriminatory explanation for why the applicant, in particular, was selected for termination, among others based on performance and restructuring. To that extent, the rationale I have adopted is similar to that expressed by this Tribunal in McClendon v. Standard Insurance Brokers, 2009 HRTO 2072. The explanation is consistent with the evidence and documentation prepared at or near the time of the applicant’s termination by personnel employed by the respondent.

21There is simply no basis to conclude that a pattern of age discrimination is established by the employee list prepared by the applicant. It has no probative value, particularly when considering that the terminated employees were not replaced by any of the new hires. The applicant sought to re-open his cross-examination of Ms. Lourenco at the time of final argument to further question her on the issue of whether the older employees identified by him were replaced by younger employees. I was satisfied that the issue had been sufficiently canvassed in her evidence previously. In a company the size of the respondent, and when considering the uncontradicted evidence of the ages of its other employees, which I accept, there is no discernible pattern of any kind which suggests age discrimination.

22The applicant offered no evidence of anecdotal comments from anyone in the workplace about age-based harassment, hiring practices or termination. There is nothing in his performance reviews which suggests an age-related issue. The applicant provided no challenge to the respondent’s contention that termination decisions were merit-based. To the extent the applicant disagreed with the respondent about the significance of his performance issues, I find his evidence on this point insufficient to establish any inference that they were a pretext by the respondents because the surrounding circumstances and context of his dismissal are logical and consistent. The disagreement expressed by the applicant on the quality of his performance does not in any way justify his conclusion that there was age-based discrimination that led to his termination. The statistical evidence provides no basis for suggesting an institutional bias on the part of the respondent toward hiring younger employees or terminating older employees, nor is there even circumstantial evidence to establish an inference of an unconscious bias or a concern about stereotyping. The respondent’s witnesses have presented a coherent, logical basis for the decision to terminate a number of employees. There is no evidence of any kind to support the notion that the age of any employee was a factor in any hiring or firing decision of the respondent. Age was not a consideration based upon the evidence that new employees hired in the aftermath of the applicant’s termination were older than the applicant himself. Therefore, I find that the applicant’s age was not a factor in the respondent’s decision-making.

23The Tribunal lacks the authority to provide remedies for unfair treatment generally: see Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, at para. 27. The Tribunal also does not have the general power to decide whether the respondent treated the applicant fairly and appropriately: see Tuquabo v. University of Ottawa, 2010 HRTO 477, at para. 6. There is insufficient evidence to find, on the balance of probabilities, that the applicant’s age played any role whatsoever in his termination, notwithstanding the applicant’s perception. The applicant has therefore not met his onus to establish that a breach of the Code has occurred on the balance of probabilities. The decision to terminate him was simply not based upon any prohibited ground of discrimination under the Code.

DECISION

24For all the foregoing reasons, the Application is dismissed.