Arthur v. Canadian Tire Corporation, 2012 HRTO 1904

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Albert Arthur

Applicant

-and-

Canadian Tire Corporation

Respondent

INTERIM DECISION

Adjudicator: Sheri Price

Date: October 5, 2012

Citation: 2012 HRTO 1904

Indexed as: Arthur v. Canadian Tire Corporation

APPEARANCES

Albert Arthur, Applicant ) Rita Gordon, Representative

Canadian Tire Corporation, Respondent ) Laura Karabulut, Counsel

INTRODUCTION

1The applicant filed an Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent, his former employer, discriminated against him with respect to employment because of disability, age, record of offences and association with a person identified by disability, age or record of offences.

2Pursuant to a Case Assessment Direction dated August 8, 2011, the Tribunal directed, on its own initiative, that a summary hearing be convened pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the Application should be dismissed on the basis that there is no reasonable prospect that the Application would succeed. 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.

3At the outset of the summary hearing, the applicant indicated that he had misunderstood what was meant by “record of offences” on the Application form and that he was not pursuing the allegation that the respondent had discriminated against him on that basis. Nor was he pursuing the allegation that the respondent had discriminated against him because of his association with a person identified by disability, age or record of offences. However, the applicant, who is African-Canadian, indicated that he wished to argue that the respondent had discriminated against and/or harassed him because of his race and/or colour by subjecting him to racial slurs in the workplace.

4In light of this development, I sought submissions from the parties as to whether the applicant ought to be permitted to amend his Application to include an allegation that the respondent discriminated against and/or harassed him on the basis of race and/or colour; and if so, whether the applicant had any reasonable prospect of success in proving such allegation. Both parties indicated that they were prepared to make such submissions during the summary hearing, with one caveat. Counsel for the respondent indicated that she had not had an opportunity to consult with her client with respect to whether the respondent would be prejudiced if the applicant were permitted to amend his Application in the manner proposed. She reserved her right to make submissions in the event that it became necessary to hear from the respondent on this point. The summary hearing proceeded on that basis.

5For the reasons set out below, I find that it would be inappropriate, at this stage of the proceeding, to permit the applicant to amend his Application to include the allegation that the respondent discriminated against and/or harassed him because of his race and/or colour.

6However, I am unable to conclude that the applicant has no reasonable prospect of success in proving that the respondent discriminated against him on the basis of disability and/or age.

7The Application will therefore continue in the Tribunal’s process.

REQUEST TO AMEND APPLICATION TO INCLUDE ALLEGATION OF RACIAL DISCRIMINATION/HARASSMENT

Background

8The applicant filed his Application with the Tribunal on April 7, 2011. However, the Application form was largely incomplete. Accordingly, on May 4, 2011, the Tribunal sent the applicant a Notice of Incomplete Application, directing him to provide the information necessary to complete his Application on or before May 24, 2011.

9The applicant sent further information about his allegations against the respondent to the Tribunal on May 24, 2011, but failed to provide all of the required information. Accordingly, on June 16, 2011, the Tribunal sent the applicant a Second Notice of Incomplete Application, directing him to provide answers to the few remaining unanswered questions on the Application form on or before July 7, 2011. The applicant provided his answers to the relevant questions on July 4, 2011, thereby completing his Application.

10The Application that the applicant filed with the Tribunal does not make any reference to the applicant having been subjected to racial slurs in the workplace or otherwise discriminated against or harassed because of his race and/or colour.

11On the Application form that he filed with the Tribunal, the applicant was asked to identify the grounds upon which he claimed to have been discriminated against by the respondent. Although the applicant ticked off the boxes for disability, age, record of offences and association with a person identified by those grounds, the applicant did not tick off the boxes for race or colour, or any related prohibited grounds of discrimination under the Code.

12The Tribunal’s Application Form directed the applicant to “describe each event” he “believe[d] was discriminatory”, and to “be as complete and accurate as possible” in stating “what happened, who was involved, when it happened…where it happened” (i.e. Question #8). Despite this clear directive, neither of the narratives submitted by the applicant with his Application in April 2011 or May 2011, nor any of the other documents that accompanied the Application, make any reference to the applicant having been subjected to racial discrimination or harassment in the workplace.

13The Tribunal’s Application form also directed the applicant to complete a particular section of the form “if [he] believe[d] that [he had] been discriminated against on one or more of these grounds: race, colour, ancestry, place of origin, citizenship, or ethnic origin.” The applicant left this section blank, although he completed the corresponding sections on disability and age.

14In its August 8, 2011 Case Assessment Direction in this matter, the Tribunal directed the parties to provide copies of any documents or cases they intended to rely upon at the summary hearing no later than 14 days before the hearing. The applicant did not submit any documents in response to that direction regarding his allegation that he had been discriminated against because of his race and/or colour. He did however write to the Tribunal during the fall of 2011 reiterating that he had been wrongfully terminated from his job following a workplace accident.

15The summary hearing in this matter was originally convened on December 19, 2011. At the outset of that hearing, I confirmed the Tribunal’s understanding that the applicant was alleging that the respondent had discriminated against him on the basis of disability, age, record of offences and association with a person identified by one of the above grounds. At that point, it came to light that the Tribunal had not provided the respondent with all of the materials submitted by the applicant with his Application. (Among other things, the respondent had not received the completed Application form on which the applicant had ticked off the grounds of discrimination he was claiming, i.e. disability, age, record of offences, association with a person identified by one of these grounds.) The December 2011 hearing was ultimately adjourned so that the Tribunal could provide the respondent with a complete copy of the Application. At no point during the admittedly brief December 19, 2011 teleconference did the applicant indicate that he also wished to allege discrimination on the basis of race and/or colour.

16It was not until the summary hearing reconvened on May 3, 2012, that the applicant raised, for the first time, the allegation that the respondent had discriminated against and/or harassed him on the basis of race and/or colour. Specifically, during the May 3, 2012 summary hearing, the applicant alleged that he had experienced racial discrimination in the workplace when the applicant’s foreman responded to the applicant’s complaint about a co-worker calling him a “nigger” by starting to call him a “nigger” himself. The applicant alleges that the foreman did this on many occasions and did not stop until the applicant reported it to the maintenance manager. The applicant submits that the foreman stopped making racial slurs against him when the maintenance manager confronted him about his behaviour, at some point during the summer of 2010.

17The respondent opposes the applicant’s request to amend the Application to include allegations of racial discrimination and/or harassment on the basis of delay.

Analysis

18Rule 1.7(c) of the Tribunal’s Rules of Procedure states that, in order to provide for a fair, just and expeditious resolution of any matter before it, the Tribunal may “allow any filing to be amended.”

19In considering requests to amend an Application under s. 34 of the Code, the Tribunal generally considers the nature of the proposed amendment, the reasons for the request to amend, the timing of the request to amend and the prejudice to the respondent. Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

20In this case, given the significant nature of the proposed amendment and the timing of the request to amend, I am not persuaded that it would be appropriate to permit the applicant to amend his Application to include allegations of discrimination and/or harassment on the basis of race and/or colour.

21I agree with the respondent that, while the Tribunal will often permit amendments that relate to and/or clarify the allegations contained in the original Application, the Tribunal is generally more reluctant to permit an applicant to amend an Application by adding allegations that are completely new and unrelated to those contained in the original filing, particularly where the applicant seeks to raise, by way of an amendment, allegations that he would be barred from bringing forward in a new application, on account of delay. I am referring here to s. 34 of the Code, which prevents an Application from being filed more than one year after the date of the last event to which the Application relates (s. 34(1)), unless the applicant satisfies the Tribunal that the delay in filing the Application was incurred in good faith (by providing a reasonable explanation for the delay) and that there would be no substantial prejudice to anyone affected by the delay. (s. 34(2))

22Strictly speaking, the one-year time limit in s. 34(1) of the Code applies only to when a person may file an Application with the Tribunal, and not to requests to amend an Application. The Tribunal can, and does, permit amendments to Applications outside of the one-year period contemplated in s. 34(1) of the Code without requiring applicants to satisfy the test under s. 34(2) of the Code. Having said that, s. 34(1) of the Code does reflect the expectation that human rights applicants will bring their allegations forward in an expeditious manner and not unduly delay in alerting respondents to the case against them: Khokher v. Intercon Security Limited, 2011 HRTO 1493; Shakhnazarov v. George Brown College, 2011 HRTO 1917; Anderson v. Stieber Berlach LLP, 2012 HRTO 1471.

23In this case, the applicant had numerous opportunities to allege racial discrimination and/or harassment by the respondent in a timely manner, but failed to do so. The applicant did not allege that the respondent had discriminated against and/or harassed him on the basis of race and/or colour until May 3, 2012, almost two years after the last time the applicant was allegedly subjected to racial slurs in the workplace, approximately 18 months after his last day of work with the respondent, and more than 15 months after the termination of his employment.

24Nor has the applicant provided a reasonable explanation for his failure to bring his allegations forward in a more timely manner. During the summary hearing, the only explanation offered for the delay in raising the allegation of racial slurs was that the applicant’s representative thought that ticking off the box to indicate that the applicant had been discriminated against based on his “Association with a Person Identified by a Ground Lifted Above” was sufficient to cover racial discrimination by a person the applicant was “associated with” in the workplace, namely his foreman. Even if true, this is not a reasonable explanation for the applicant’s failure to set out any of the factual allegations underlying his claim of racial discrimination and/or harassment elsewhere in the Application form or in the accompanying documents.

25If the applicant had set out the factual allegations underlying his racial discrimination claim, but failed to check off the correct boxes to indicate the prohibited grounds of race and colour, I would not hesitate to grant the applicant’s request to amend. In this case, however, the applicant seeks to substantially alter the case against the respondent by adding allegations that are completely new and unrelated to those contained in his original Application; and he does so at a time when the provisions of the Code would prevent him from filing a fresh Application based on such allegations. In the circumstances, I find that it would not be fair, just and expeditious to permit the applicant to amend the Application in the manner proposed.

26The applicant’s request to amend his Application to include the allegation that the respondent discriminated against him and/or harassed him on the basis of race and/or colour is denied accordingly.

27I now turn to the issue whether the applicant has a reasonable prospect of success in proving that the respondent discriminated against him on the basis of the prohibited grounds cited in his Application, namely, age and/or disability.

WHETHER APPLICANT HAS A REASONABLE PROSPECT OF SUCCESS IN PROVING DISCRIMINATION BECAUSE OF DISABILITY AND/OR AGE

28Rule 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.

29Details about the nature of a summary hearing were set out in Dabic v. Windsor Police Service, 2010 HRTO 1994, 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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

30Although the respondent may well dispute some or all of the applicant’s allegations, it has not yet been required to file a Response to the Application. Accordingly, and as is the usual course, in determining whether the Application has no reasonable prospect of success, I have considered only the facts as asserted by the applicant.

31The applicant commenced employment with the respondent as a millwright in or around September 2005.

32The applicant submits that, while he was working for the respondent on November 14, 2010, he suffered a recurrence of a 2007 workplace injury and had to go off work as a result. The applicant submits that he continued to be off work due to his disability until the respondent terminated his employment on January 28, 2011. During the summary hearing, the applicant pointed to documentary and other evidence of the November 14, 2010 injury and his related absence from work.

33On January 28, 2011, the respondent terminated the applicant’s employment on the stated basis that the applicant had repeatedly violated the respondent’s health and safety policy. Specifically, in its January 28, 2011 termination letter, the respondent relied upon the following alleged health and safety infractions to justify its decision to terminate the applicant’s employment:

a. In November 2008, the applicant allegedly failed to properly lock out equipment, contrary to the respondent’s Health and Safety Policy. The respondent gave the applicant a written warning for this infraction.

b. On October 20, 2010, the applicant allegedly failed to lock out equipment. The respondent gave the applicant a written warning that any further failure to comply with the respondent’s health and safety requirements could result in the termination of his employment.

c. On November 13, 2010, the applicant allegedly engaged in a serious breach of health and safety rules when he climbed on a conveyor belt without a safety harness and without locking out the equipment.

34During the summary hearing, the applicant indicated that he disputes the factual basis for some or all of the discipline imposed on him by the respondent. He submits that the respondent has fabricated and/or exaggerated the above-noted allegations in order to justify its decision to “get rid of” the applicant. The applicant submits that the real reason that his employment was terminated by the respondent in January 2011 is that the applicant was an older worker (66 years old at the time of his termination) who had been off work because of a workplace injury since November 14, 2010. He submits that the alleged health and safety infractions were merely a pretext for getting rid of the applicant, whom the respondent regarded as a liability because of his workplace injury(ies) combined with his age.

35The applicant submits that if the November 13, 2010 incident had been serious enough to warrant the applicant’s dismissal, the respondent would not have permitted him to work his next shift on November 14, 2010, i.e. the shift during which the applicant suffered a workplace injury. The applicant submits that it was not until he had been off work due to his disability for more than two months that the respondent sought to rely on what allegedly happened on November 13, 2010 as the basis for terminating the applicant’s employment.

36At this stage, it is obviously not appropriate to make any findings with respect to the applicant’s allegations. I heard no sworn testimony during the summary hearing, and the respondent has not yet been provided with the opportunity to respond to the Application. It is sufficient to say that, having heard and considered the applicant’s allegations, I cannot conclude that the applicant has no reasonable prospect of proving that the respondent discriminated against him on the basis of disability and/or age. The Application will therefore continue in the Tribunal process.

DIRECTIONS

37The respondent is directed to file its Response to the Application within 21 days of the date of this Interim Decision.

38The applicant is directed to file his Reply to the Response within 14 days of receiving the respondent’s Response.

39In preparing his Reply to the Response, the applicant’s attention is drawn to Rule 9 of the Tribunal’s Rules of Procedure, which provides that:

An applicant who intends to prove a version of the facts different from those set out in a Response must deliver and file a Reply in Form 3 setting out the different version, unless it is already contained in the Application. An Applicant may also reply to any other matter raised in the Response.

40As noted above, the applicant indicated during the summary hearing that he disputes some or all of the respondent’s allegations about health and safety violations committed by the applicant. Accordingly, in his Reply to the Response, and pursuant to Rule 9.1 above, the applicant should set out his version of the facts regarding the incidents in question.

41I am not seized.