HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Julius Casimir
Applicant
-and-
Double Diamond Acres Ltd./Twin Peaks Hydroponics and Nick Mastronardi
Respondents
DECISION
Adjudicator: David Muir
Indexed as: Casimir v. Double Diamond Acres Ltd.
Appearances
Julius Casimir, Applicant
Linda Vanucci and Jessica Tellez, Counsel
Double Diamond Acres Ltd./Twin Peaks Hydroponics and Nick Mastronardi, Respondents
James Ball, Counsel
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 ancestry, colour, ethnic origin, family status and race.
2At the hearing I asked the respondents whether they were taking the position that the Application was untimely. Despite my advice to them that the issue had not been finally determined the respondents wished to proceed with the hearing. In light of my conclusions below I do not believe it necessary to revisit the issue of the Application’s timeliness. .
Background
3The applicant was a seasonal agricultural worker at the material times employed by the corporate respondent under the Seasonal Agricultural Worker Program (the “Program”). He began working for the corporate respondent on March 17, 2007. In the normal course the contract would have concluded on September 30, 2007 and the applicant required to return to his home country. .
4The only allegation in the Application is that on June 13, 2007 the applicant was informed by his supervisor that he “was no longer needed for work and the reason was that he had gotten married”. The respondents state the applicant in effect abandoned his employment as a seasonal agricultural worker and then later sought employment outside of the Program.
5A hearing was held on October 11, 2012 in Windsor. I heard from the applicant as well as Benji Mastronardi and Arthur Wievold for the respondents. The personal respondent Nick Mastronardi had no involvement in this dispute and did not give evidence. In addition a number of documents were marked as exhibits. A court reporter retained by the respondents was present and recorded the evidence. A transcript was produced and was reviewed by me before the release of these reasons.
6As indicated above, the applicant’s only allegation is that he was terminated because he got married in Canada. In a Case Assessment Direction (CAD) issued to the parties on September 7, 2012, I had drawn the parties’ attention to the fact that this was the only substantial issue for resolution. At the outset of the hearing I confirmed with the parties that the issue in dispute was as I had set out in my CAD.
7After the evidence was concluded, the applicant significantly enlarged the scope of the Application with arguments that the contract of employment under which the applicant had agreed to be employed was discriminatory on the basis of family status, marital status, race, colour and ethnic origin because it in effect required the applicant to remain single and to reside at the work-site. These latter positions were not contained in the Application and, accordingly, I find that it would be inappropriate to deal with them at this late stage, without notice of any kind to the respondents and after the evidence was all in. In any event I also find that the argument does not arise on the evidence the applicant does not claim in his Application that he asked to live off site or with his spouse and/or her children.
Evidence and Analysis
8The dispute in this case is whether, as alleged by the applicant, the applicant was fired because he got married in Canada or, as alleged by the respondents, that the applicant abandoned the work site for a period of time and then asked to be re-employed outside of the Program.
9There is no dispute about the following facts:
The applicant began work in the Program on March 17, 2007 and under the Program would have been required to leave Canada on September 30, 2007
The applicant met his future spouse shortly after arrival in Canada and they were married on June 2, 2007. The applicant’s spouse had recently given birth to twins.
The corporate respondent could not offer employment to the applicant outside of the Program.
9A key factual dispute concerns the applicant’s physical whereabouts after he was married on June 2, 2007. The applicant testified that he returned to the worksite on June 3, 2007 and reported for work the following day, June 4, 2007. The applicant testified his supervisor Robert told him to return to the bunkhouse and wait until Benji spoke to him. The applicant testified that he reported for work on June 5 and June 6, 2007 but was told he could not work until he had spoken to Benj. He testified that he spoke to Benji at some point on June 5, 2007 but was rebuffed. The applicant testified that he continued to live on site in the bunkhouse from the day after the wedding until he was fired on June 13, 2007. Each evening he would go to his wife’s house for two hours and then return to the bunkhouse for the night.
10However, in re-examination when asked how he received his second last paycheque issued June 5 and which the applicant cashed on June 6, 2007 in Leamington, the applicant testified that a co-worker brought it to him “at my house, I was living on Pull (Paul) Street at the time”. I then intervened and stated to the applicant: “You were living on what street? To which the applicant responded, “Pull (Paul) Street in Leamington”. The applicant was then asked why the cheque was being brought to him at his home. He responded that he could not remember exactly but he received a call at home around noon on June 6, 2007 from his workmate who was on lunch and who told him there was a cheque waiting for him at work. The applicant then testified that he asked his workmate to pick up his cheque and bring it to him on his way into town after work.
11On a central factual dispute in this case - whether or not the applicant had remained, as he claims at the worksite ready and willing to work each day from June 4, to June 13, 2007, I am unable to find that this was the case. On the contrary, on this issue it appears, as the respondents have stated, that the applicant had left the worksite after the wedding. I make this finding on the basis of the applicant’s own evidence that by June 6 and, in the circumstances more likely June 5 at the latest, the applicant was no longer residing at the worksite and had established a home on Paul Street in Leamington. He left the worksite after his wedding. This is in stark contrast to his will-say, examination in chief and cross-examination that he remained on-site during this time period and was prepared to remain there until the end of his contract.
12I also find in light of this contradictory evidence that it is more likely than not that, as the respondents claim, the applicant returned to the worksite and approached Benji Mastronardi about working outside of the Program. I have come to this conclusion for a number of reasons. The evidence of the applicant on this point was straight forward, he did not ask to be employed outside of the Program. Mr. Mastronardi testified that the applicant did make this request. Considering this evidence in isolation it would be difficult to determine which version was more likely. However, I find that the stark contradiction in the applicant’s evidence on a key factual dispute inextricably linked with his version of this dispute casts significant doubt on all of the applicant’s evidence.
13I have also considered the fact that the respondents’ version of events is somewhat more probable than the applicant’s. Although this is not perfectly clear, it appears to be the case that the applicant understood that his contract of employment required that he reside onsite, although that is not exactly what it says. However, given that this appears to have been the applicant’s understanding of his obligation, the fact that he might have wanted to reside with his new family and to fully participate in establishing a new household in Canada would not be surprising. I also note that under the Program he would be obligated to leave Canada and his new family on September 30, 2012. Again, this obligation is inconsistent with the applicant’s intent to establish a family household in Canada.
14On the other hand it is not clear why it would matter one way or the other to the respondents whether the applicant had married or not and there is no reason to question the evidence of Mr. Mastronardi who testified the applicant’s marital status did not matter to him.
15Accordingly, I find it more probable than not that the applicant, as suggested by the respondents, left the work site shortly after his wedding and then returned seeking to work outside of the Program. There was no dispute that the corporate respondent could not offer the applicant employment outside of the Program and therefore no basis to conclude that the ending of the applicant’s employment was discriminatory.
16For all of these reasons the Application is dismissed.
Dated at Toronto, this 19th day of November, 2012.
”signed by”
David Muir
Vice-chair