Young v. Bolton, 2012 HRTO 2023

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Glenn Alan Young

Applicant

-and-

Elgin Bolton

Respondents

DECISION

Adjudicator: Ian R. Mackenzie

Date: October 24, 2012

Citation: 2012 HRTO 2023

Indexed as: Young v. Bolton

APPEARANCES

Glenn Alan Young, Applicant

Self-represented

1469539 Ontario Inc. (Secure Storage), and Elgin Bolton, Respondents

James E. Bowden, Counsel

Introduction

1Glenn Alan Young filed 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 with respect to employment because of age. The applicant was employed by 1469539 Ontario Inc. (“Secure Store”). Elgin Bolton is the president and main shareholder of Secure Store. The applicant alleges that he was dismissed from his employment because of his age. The respondent submits that the applicant resigned from his employment.

2In correspondence to the Tribunal sent shortly before the hearing, the respondent submitted that because the employer had not been named as a respondent, it would be inappropriate to order any remedy other than a declaration, in the event that a violation of the Code was found.

3The respondent also submitted in its correspondence that the finding of an Employment Standards Officer that the applicant’s employment had not been terminated by Secure Storage was binding on the Tribunal.

4I have addressed both of these submissions in the reasons for decision, below.

5The applicant adopted the narrative in his Application as his evidence and gave additional evidence. Mr. Bolton testified for the respondent.

Summary of evidence

6The applicant was 65 years of age at the time of the end of his employment with Secure Storage. He had worked for Secure Storage for the previous six years as a salesperson.

7Mr. Bolton testified that he had been approached about selling the company in December of 2009 or January 2010. At that time, Mr. Bolton asked the applicant what he planned on doing once he turned 65 (in June of 2010). The applicant testified that he told Mr. Bolton that he needed to keep working and could not afford to retire. Mr. Bolton could not remember if the applicant told him this. Mr. Bolton testified that he thought at the time that the applicant would continue to work. Mr. Bolton testified that he had similar discussions with all of his employees. The applicant testified that he was willing to work for a new owner.

8Mr. Bolton hired a relative, Paul Bombaci, to assist with the company’s website in May of 2010. Mr. Bolton testified that he discussed with Mr. Bombaci the possibility of him taking over some of Mr. Bolton’s duties. Mr. Bolton testified that he hired Mr. Bombaci on a trial basis as a general manager to oversee all the daily activities of the company. Mr. Bolton testified that this would not have affected the applicant at all. Mr. Bolton testified that he wanted the applicant to train Mr. Bombaci on sales so he could understand what the job of a salesperson involved. Through his evidence, Mr. Bolton introduced a copy of a business card identifying Mr. Bombaci as “General Manager”, along with a receipt for business cards dated June 17, 2010. Mr. Bombaci is no longer with the company.

9The applicant testified that Mr. Bombaci started taking some of his sales calls at some point in May. The applicant spoke to him about this, as he was losing commission sales as a result. The applicant testified that Mr. Bombaci agreed to stop taking the calls.

10The applicant attended a meeting with Mr. Bolton on May 31, 2010. The applicant testified that Mr. Bolton said that Mr. Bombaci would be taking over the sales position. The applicant testified that Mr. Bolton said, “You’re going to be turning 65 in a few days, what would you like to do?” The applicant testified that he told Mr. Bolton that he could not afford to quit and wanted to continue working. The applicant testified that Mr. Bolton then told him that he was going to give him 30-days’ notice to train the new employee in the sales department. The applicant testified that he asked Mr. Bolton why he was letting him go. The applicant testified that Mr. Bolton said that Mr. Bombaci was “a younger man with younger ideas” and he wanted to move the company in that direction. The applicant also testified that Mr. Bolton noted that the applicant was at retirement age. The applicant testified that he told Mr. Bolton that he was not ready to retire. The applicant testified that he was in shock, as he had not expected the meeting to be about the termination of his employment.

11Mr. Bolton remembers the meeting differently. Mr. Bolton testified that he first asked the applicant about his plans at that meeting. He testified that as the applicant’s 65th birthday was soon, he asked him again what his plans were. He testified that he wanted to make sure that he did not have to replace him at age 65. He testified that the applicant did not have a response to his question. Mr. Bolton testified that he then told the applicant that he was hiring Mr. Bombaci to take over his (Mr. Bolton’s) duties. He testified that he told the applicant that Mr. Bombaci needed to be trained in sales over the next thirty to sixty days. Mr. Bolton testified that the applicant said “so, you’re replacing me”? Mr. Bolton testified that he told the applicant that this was not the case, but that Mr. Bombaci was to replace himself (Mr. Bolton).

12Mr. Bolton testified that the applicant was “shaken up” or agitated and left the office. The applicant testified that he was shocked by the news.

13In cross-examination, Mr. Bolton was asked if he thought that the applicant would have left employment on his 65th birthday. He testified that he probably thought so at the time, since he asked the question.

14Mr. Bolton testified that he had dismissed employees in the past and had been aware of notice requirements. It was his understanding at the time that if he intended to dismiss someone he would be required to provide notice of two weeks for the first year of service and one week per year of service past the first year.

15The applicant testified that he called Mr. Bolton when he got home and asked for a letter of recommendation. He also asked for a letter of dismissal that stated that the applicant was dismissed because of his age. The applicant testified that Mr. Bolton said he did not have to give a letter of dismissal and that it was a verbal dismissal. In his Reply to the Application, Mr. Bolton states that he received a call from the applicant the following afternoon, not the same day. He states that there was no request for a letter of dismissal and that the applicant did not mention a termination of employment because the applicant was turning 65. Mr. Bolton testified that the applicant asked for a letter of reference. He told the applicant that he would consider it. . Mr. Bolton states that the applicant asked Janice Bolton, the office manager, for a letter of termination on June 2 or 3, 2010.

16The applicant did not attend work on June 1, 2010. The following day he attended in the morning to train his replacement. He then left work at noon and continued to do so until the last day of his employment on June 18, 2010. He testified that the training work was “fairly intense” and he needed to look for work in the afternoons. In addition, he was not getting any sales calls, so he was not earning any commission. In cross-examination, the applicant testified that he did not contact any prospective employers in the first week as he “was not operating at full capacity”. He testified that he worked on improving his resume. He did not provide a copy of the resume as part of his disclosure. He testified that in the second week, he phoned friends and former business associates about possible job leads.

17The applicant sent a letter to Mr. Bolton on June 3, 2010, with the heading “Resignation of Position”. The letter stated as follows:

The following letter shall serve as my two weeks notice of resignation of my sales position within your company, from the above-noted date.

The letter shall supersede your verbal notice of termination. Wherein you stated that you had a need to hire someone younger to train to take over my position and relieve you of some of your duties, as I am turning sixty-five (65) as of this month. As well this letter is not to be construed as to nullify the terms and conditions of the mutually agreed upon and executed contract…

Further, my notice of termination, under the Employment Standards Act (ESA), does not affect my six weeks severance pay owed. …

I shall expect, according to the ESA statute, my Record of Employment, vacation pay and final remuneration up to and including all sales, rentals pending, and six weeks severance pay, prepared for pickup prior to the close of business on … June 24, 2010.

Please govern yourself accordingly.

18The applicant testified that he said in his letter that it “superseded” the dismissal so as not to affect the termination pay owed. The applicant testified that he was told by someone at the Ministry of Labour that after receiving a dismissal he could put in a letter of resignation giving two weeks’ notice. He testified that he needed to leave Secure Storage in order to look for work full time.

19Mr. Bolton testified that after receiving the letter of June 3, 2010 from the applicant he consulted a lawyer because there were so many false allegations in it.

20On June 11, 2010, Mr. Bolton returned to the office and asked to speak to the applicant. The applicant testified that Mr. Bolton said he was disappointed, even though he was going to accept the resignation. He states that Mr. Bolton told him he wanted him to leave immediately and would pay him only one-week’s salary (up to June 17, 2010). The applicant also testified that Mr. Bolton told him that he did him a favour by holding off on dismissing him until he reached the age of 65, so he could receive his pension. Mr. Bolton denied making this comment. He testified that he had been told by his lawyer not to engage in a discussion with the applicant. Mr. Bolton testified that he accepted the resignation based on the recent poor attendance and attitude of the applicant.

21The applicant filed this Application on June 12, 2012. A Notice of Incomplete Application was sent to the applicant on September 30, 2010 and a completed Application was sent to the respondent on October 13, 2010. In the Application, the applicant made allegations related to Mr. Bolton’s daughter (who worked at Secure Store). I have not summarized these allegations because they do not relate to the alleged breach of the Code.

22The applicant testified in cross examination that he informed the Workerplace Safety Insurance Board (“WSIB”) of alleged irregularities at Secure Store at around the same time that he filed this Application (he refers to this fact in his Application). The applicant testified that the alleged irregularities showed Mr. Bolton “in his kingdom, bending the rules”. Mr. Bolton stated that the WSIB found no irregularities, although he did state that he and the WSIB were like “oil and water”.

23On June 18, 2010, the applicant met with Mr. Bolton at his office and was provided with a letter, signed by Mr. Bolton. The letter accepted the applicant’s resignation, subject to the following conditions: payment of $20,000 (subject to statutory deductions); regular salary payable up to June 18, 2010; a full release in favour of Secure Store and its principles in respect of all matters related to employment. The letter stated that if this was not acceptable to the applicant, the respondent would provide wages and commissions earned to June 18, 2010 and any accrued vacation pay. No payment in lieu of notice would be provided in the absence of a signing of the release, the letter stated, because the applicant quit. The applicant read the letter at the meeting and told Mr. Bolton that he would not sign.

24On June 23, 2010, the applicant wrote to Mr. Bolton and stated that he would not sign the release. He wrote that he did not quit his position, but was dismissed because he was turning 65 years old. He explained in his letter that because the working environment was stressful, he gave two weeks’ notice.

25The applicant testified that there was another meeting on June 24, 2010. Mr. Bolton had another staff person with him at the meeting. The applicant testified that Mr. Bolton handed him the same letter as had been presented at the June 18, 2010 meeting and told him that he could still sign it. The applicant told him he would not sign it. The applicant was then provided with his Record of Employment (“ROE”) and a cheque for his remaining salary, commission and vacation pay. The applicant testified that as he was leaving, Mr. Bolton told him that he had recorded the conversation. The applicant told him that was no problem and then left. The recording was not provided to the applicant. Mr. Bolton did not deny that a recording was made.

26The ROE was coded as “quit”. The applicant stated that Employment Insurance reviewed his file and approved the payment of Employment Insurance benefits, commencing on August 17, 2010.

27The applicant filed a claim for severance pay with the Ministry of Labour, pursuant to the Employment Standards Act, 2000 (“ESA”). The respondents received a notice of the claim on November 1, 2010. The respondents were advised by an Employment Standards Officer on February 14, 2011 that he found no contravention of the ESA. The Officer concluded that “no credible evidence was advanced nor can be deduced that the employer terminated the employee”.

28Mr. Bolton testified that he was now working part-time, still in his former role. Mr. Bombaci was no longer with the company.

29The applicant testified that he was still unemployed at the time of the hearing. He testified that he worked part-time for four weeks, about two months after the end of his employment. He testified that he had been looking at a number of sales jobs at car dealerships, marinas, selling swimming pools and some retail. He testified that many places were laying people off and that his age was working against him. He testified that most of the places he applied to told him that he was over qualified, which the applicant views as a code for too old.

30He testified that he had to rely on his children for financial and emotional support. He described a feeling of helplessness. The applicant testified that the end of his employment has made him depressed and he no longer wants to leave his home. He testified that he has not sought any professional help for his depression. In cross-examination he stated that he might not have depression but that this was his self-diagnosis. He admitted that a contributing factor to his current mental state was his financial situation.

submissions

31The applicant submitted that it did not make sense that he would quit because Mr. Bombaci was taking over Mr. Bolton’s job. He submitted that he had already told Mr. Bolton that he would be an asset to a new buyer. The applicant submitted that Mr. Bolton dismissed him because he was 65. The applicant also submitted that it made no common sense for him to quit a job without any savings.

32The applicant is seeking $50,000 in lost income and human rights damages of $30,000.

33The respondent submitted that if it had ever been Mr. Bolton’s intention to terminate the applicant’s employment one would think he would have gone about it a lot differently. Mr. Bolton knew that the applicant was turning 65 and that he could not discriminate. In addition, the respondent submitted, thirty days’ notice is not consistent with his understanding of his notice obligations. In addition, the respondent submitted that it did not make sense to get rid of Mr. Young as he had been a productive salesperson for six years. The respondent submitted that it was not plausible that they would hire a new general manager, leaving the company without a salesperson.

34The respondent submitted that Mr. Bolton had no reason to get rid of the applicant. The applicant was less enamored of his job than he admitted at this hearing. The respondent pointed out to the applicant’s reference to “the king and his kingdom”. The respondent submitted that the applicant harboured resentments against the family, which is evident from the Application itself.

35The respondent submitted that there was not sufficient evidence to show a breach of the Code.

36The respondent submitted that the difficult financial circumstances of the applicant were not caused by the respondent. The respondent stated that the applicant has provided no documentation to support his job search.

37The respondent submitted that any liability should be that of the corporation, not the individual. The respondents submitted that it is an improper remedy to seek against an individual.

38The respondent submitted that the request for human rights damages of $30,000 was excessive: an appropriate range, if liability was found, would be in the $5,000 to $10,000 range.

39The respondents submitted that if liability is found, any obligation for lost income should stop at the time that the applicant made negative comments about the family in the Application. The respondents submitted that the applicant’s employment would not have lasted long after Mr. Bolton learned of the comments about his family. Since the Application was filed before the end of his pay period, there should be no award for loss of income.

decision

Preliminary Issues

40The applicant only named the president of Secure Storage as a respondent. He stated at the hearing that Mr. Bolton was the one who hired him and fired him, so this is why he named him as a respondent and not Secure Storage. The respondent has submitted that since the employer was not named as a respondent, any remedy ordered by the Tribunal should be limited to a declaration. Given my conclusion below, I find it unnecessary to address this submission regarding vicarious liability.

41The respondent has submitted that the findings of the ESA Officer are binding on the Tribunal. Given my conclusions on the merits of the Application it is not necessary to address this submission.

42I heard testimony about the taping of the June 24, 2010 meeting. No tape was disclosed to the applicant. However, it does not appear that there are any facts in dispute related to that meeting.

Allegations of Discrimination

43The applicant has alleged that his employment was terminated because of his age. The respondent alleges that the applicant’s employment was not terminated but that the applicant resigned. For the reasons set out below, I have concluded that the applicant’s employment was not terminated and that there was no discriminatory conduct by the respondent.

44There is agreement between the parties that Mr. Bolton asked the applicant on two occasions about his retirement plans: first in December 2009 or January 2010 and again on May 31, 2010.

45It is not inappropriate for an employer to ask an employee about his or her retirement plans, if asked for a legitimate reason: see Clennon v. Toronto East General Hospital, 2009 HRTO 1242 at para. 57 and Schram v. Avon-Maitland District School Board, 2010 HRTO 24, at paras. 45-46.

46In the first instance, Mr. Boland testified that he asked all his employees about their intentions, in light of the fact that he had been approached by a potential buyer of his business. This is a legitimate request for information relevant to a potential purchaser of a business. The content of the May 31, 2010 meeting is disputed by the parties and rests on my findings of credibility. I will address the legitimacy of the question about retirement plans at the May 31, 2010 meeting after determining those issues of credibility.

47In assessing the credibility of evidence, the Tribunal has consistently applied the test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), (at 356-357): an examination of the harmony of the evidence “with the preponderance of the probabilities which a practical and informed person would readily recognize” as reasonable in the circumstances. In Cugliari v. Telefficiency Corporation, 2006 HRTO 7, the Tribunal also examined the internal consistency of the evidence and contradictions in the evidence (cited in Aujla v. BJS Sales Marketing, 2010 HRTO 966).

48The critical fact in dispute relating to the May 31, 2010 meeting is whether Mr. Bolton told the applicant that Mr. Bombaci was replacing the applicant or taking on some of the duties of Mr. Bolton. The applicant is relying on his allegation that Mr. Bombaci was to replace him to support his overall allegation that his employment was terminated on the basis of his age. On a balance of probabilities, I find that it is more likely that Mr. Bolton intended Mr. Bombaci to take on the role of General Manager and asked the applicant to assist in his training. I reach this conclusion on a finding that the respondent’s version of events is more credible than that of the applicant’s. I have reached this conclusion on credibility based on the following:

a. The applicant was not provided with a letter terminating his employment;

b. There is no other documentation to support a decision by the employer to terminate the applicant’s employment;

c. The applicant’s own letter of resignation in addition to allegations of a verbal dismissal refers to Mr. Bolton’s statement that Mr. Bombaci was to “relieve you [Mr. Bolton] of some of your duties”;

d. Business cards were prepared for Mr. Bombaci, with the title of General Manager, shortly after the meeting;

e. The comment made by Mr. Bolton about taking the company in a “new direction” is a comment more likely associated with the role of a general manager than a salesperson; and

f. The alleged notice period referenced by Mr. Bolton at the meeting (30 days) does not correspond to his understanding of appropriate notice, nor the minimum standards under the ESA, based on his past experience.

49The applicant may have been confused after his initial conversation with Mr. Bolton, given that Mr. Bolton asked about retirement plans at the same time as establishing a time period for the training of Mr. Bombaci. However, Mr. Bolton did answer that confusion by telling the applicant at that meeting that his employment was not being terminated and confirming it again in a subsequent conversation.

50All of these factors support a finding that Mr. Bolton did not terminate the applicant’s employment at the May 31, 2010 meeting.

51Mr. Bolton’s testimony that he asked again about retirement plans at the May 31, 2010 meeting because he wanted to ensure he had an experienced salesperson available for the new (and inexperienced) general manager is credible and is a legitimate question to ask of an employee.

52In light of my conclusion that the applicant’s employment was not terminated by the respondent and that the questions about retirement plans were legitimate, the applicant has not established on a balance of probabilities that there was a breach of the Code. Accordingly, the Application is dismissed.