HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Amir Shahin
Applicant
-and-
Snap on Tools – Snap on Equipment
Respondent
DECISION
Adjudicator: Geneviève Debané
Indexed as: Shahin v. Snap on Tools – Snap on Equipment
APPEARANCES
Amir Shahin, Applicant
Self-represented
Snap-On-Tools – Snap-On-Equipment, Respondent
James D. Henderson, 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 race, place of origin, ethnic origin, age and reprisal. The applicant self-identifies as Canadian of Middle-Eastern descent. The Application was filed with the Tribunal on June 4, 2012.
2In a Case Assessment Direction dated June 28, 2012 (the “CAD”), the Tribunal directed that a summary hearing be held to determine whether all and/or part of the Application should be dismissed because some of the allegations were untimely and whether the Application had no reasonable prospect of success. The respondent was advised that it did not have to file a Response.
3A conference-call hearing was convened on October 12, 2012. Prior to the summary hearing, the respondent filed written submissions and case-law.
4During the summary hearing, the applicant advised that he “did not care anymore” and that he had chosen not to file any materials in response to the CAD. The applicant stated that he believed that his Application was clear and timely and that he had nothing further to say. I advised him that this was his opportunity to address the issues raised in the CAD and that he could make oral submissions. He then proceeded to tell the respondents that they had won and that they had ruined his life. When I asked him if he could explain why he believed that his termination from employment was related to a prohibited ground he refused to answer, saying “no”.
5The Tribunal did not call on the respondent and this Decision is based solely on the written materials filed by the parties.
Background
6The applicant was employed by the respondent since June 2002 in various positions. On October 23, 2006, the applicant was promoted to the position of Mechanical/Industrial Engineer.
7On January 24, 2011, the applicant was advised that the facility that he worked at was closing and that his last day of work would be June 30, 2011. From March 6, 2011, until April 25, 2011, the applicant was absent from work on a medical leave of absence. The applicant was successful in obtaining a transfer to another facility operated by the respondent and he commenced work at this new location on May 18, 2011.
8Within the first five weeks of his employment, the applicant believes that he was unfairly accused of not following company protocols and that he did not obtain the appropriate support from his supervisor. The applicant advised in an email that because of this lack of support he could not continue to work on that project as a project manager. On June 28, 2011, the respondent terminated the applicant’s employment.
9Thereafter, the applicant filed a complaint at the Ministry of Labour on July 28, 2011, alleging breaches of the Employment Standards Act, 2000 (the “ESA”). A decision was rendered on September 19, 2011 by an Employment Standards Officer (the ESO”). The ESO found that the respondent owed the applicant termination and severance pay because it could not rely on the notice of termination that was issued to the applicant in January 2011. The respondent voluntarily paid the full amount. The ESO denied the applicant’s claim for unequal pay and that he was harassed by the respondent.
10The applicant appealed this decision to the Ontario Labour Relations Board (“OLRB”). On December 21, 2011, the OLRB issued a Decision with respect to the applicant’s appeal stating that the employer had already voluntarily paid the maximum amount under the ESA and that there was no obligation under the ESA for an employer to give reasons for the termination of an employee’s employment.
THE ALLEGATIONS OF DISCRIMINATION
11The applicant alleges discrimination with respect to the wages that he was paid during the course of his employment. He states that in the year 2005 he became aware that he was paid less than other employees. In February 2010, he alleges that he discussed the issue of his salary with the Vice-president of Human Resources and his belief that this was for discriminatory reasons. By August 2010, the respondent increased the applicant’s salary by $11,000 dollars to $72,800. Thereafter, there are no further allegations in the Application with respect to this issue. There is email correspondence between the applicant and the respondent, when the applicant accepted the position at the new facility in May 2010, in which his wages are increased to $75,000 dollars. The respondent has provided payroll records which indicate that this new rate was higher than the rate paid to the other employee in the same position and ultimately the applicant’s replacement.
12The other incident of alleged discrimination is with respect to the termination of his employment and subsequent conduct of the respondent with respect to the return of his tools. The applicant alleges not only that the termination was on the basis of Code grounds but also that it was in reprisal for reasons that are not fully explained in the Application.
DELAY
13The Tribunal’s power to hear and determine human rights applications is based on the Code. Section 34 states:
34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
14The first issue that the Tribunal must determine is the date of the last incident of discrimination. It is clear that all allegations that occur within one year of the Application filing date are timely since they were filed within one year of the last incident of discrimination. Therefore, the allegation that the applicant’s employment was terminated for discriminatory reasons is timely.
15The Tribunal must next consider whether the allegation with respect to the payment of a discriminatory wage rate is timely. The Tribunal has found in Garrie v. Janus Joan Inc., 2012 HRTO 1955 (“Garrie”), that an allegation of a discriminatory wage differential is an ongoing series of incidents for the purposes of the Code, the last incident being the date of the employee’s final pay period. In this Application, the last date of the alleged discriminatory wage differential is in August 2010, and is at least 10 months beyond the one year period.
16Therefore, the Tribunal must consider whether the allegation of the applicant’s termination of employment and the allegation of the discriminatory wage differential constitute a “series of incidents for the purposes of the Code”. In Garrie, the Tribunal summarized the following factors that the Tribunal considers in determining whether separate breaches of the Code constitute a “series of incidents” at paragraph 30:
A review of the Tribunal’s jurisprudence under section 34(1) suggests that the following factors will generally be relevant to the Tribunal’s determination of whether or not allegations of discrimination are timely because they relate to a “series of incidents”:
a. What is the last alleged incident of discrimination to which the Application relates?
b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?
c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?
d. What is the temporal gap between alleged incidents of discrimination?
17I find that the allegation with respect to the termination of the applicant’s employment and the alleged discriminatory wage differential are not sufficiently linked or related to constitute a series of incidents. Not only was there a significant temporal gap between the two incidents, but they are not of the same character and are two distinct events of alleged discrimination. The allegations relate to two different positions performed by the applicant in two distinct facilities and do not involve the same individuals. I find that this is not a pattern of conduct or series of incidents, but constitutes two events relating to discrete and separate issues without connection or nexus.
18Therefore, I find that the applicant’s allegation that he was paid a discriminatory wage rate was not filed within one year of the last incident of discrimination.
19The Tribunal must consider whether the delay was incurred in good faith. As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.” It is incumbent upon the applicant to provide the Tribunal with an explanation as to why he did not pursue his rights under the Code in a timely manner.
20In the circumstances of this case, I find that the applicant has not provided any explanation for his failure to file a timely Application with respect to the allegations of the discriminatory wage rate. The applicant was capable of filing a timely complaint with the Ministry of Labour and appealing the ESO’s decision to the OLRB. Since there is simply no explanation for the applicant’s delay in filing the Application, I cannot find that the delay was incurred in good faith. As such, the Application as it relates to the allegation of the payment of a discriminatory wage rate is dismissed.
REASONABLE PROSPECT OF SUCCESS
21The remaining issue is whether the timely allegations in the Application have no reasonable prospect of success. The key determination in this assessment is whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him can establish a link between the respondent’s decision to terminate his employment and a prohibited ground. Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:
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.
22With respect to the reprisal allegation, in the decision of Noble v. York University, 2010 HRTO 878, the Tribunal describes the legal elements of establishing a claim of reprisal under the Code at paragraph 3 and 4:
Thus, in a complaint or application alleging reprisal, the following elements must be established:
a. An action taken against, or threat made to, the complainant;
b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and
c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
23With respect to the applicant’s claim of reprisal and giving it a broad and generous interpretation despite its lack of particulars, I find that the applicant has a reasonable prospect of establishing that he raised a human rights issue in February 2010. However there is no evidence which could support that the applicant’s ultimate termination from his employment in June 2011 was in any way related to or in retaliation for having previously raised this human rights issue. In fact, in the intervening period of approximately 16 months, the applicant’s salary was significantly increased and he was successful in being transferred to a new position within the organization.
24In this case, the applicant has a belief that the actions of the respondent were based on prohibited grounds but he has not pointed to any evidence he has or could reasonably obtain which could support that conclusion. Although he describes incidents in which he feels that he was treated unfairly, he has not indicated how he could prove that this unfair treatment, even if true, was linked to a prohibited ground or was otherwise a reprisal.
25I conclude therefore that the remaining allegations in the Application should be dismissed because the applicant has no reasonable prospect of establishing that his Code-rights have been infringed.
Order
26The Application is dismissed in its entirety.
Dated at Toronto, this 13th day of November, 2012.
“Signed by”
Geneviève Debané
Vice-chair