Blake Shearer v. The Royal Canadian Legion, Campbellford (ON, BR 103) Branch, 2012 HRTO 44

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Blake Shearer

Applicant

-and-

The Royal Canadian Legion, Campbellford (ON, BR 103) Branch

Respondent

DECISION

Adjudicator: Ian R. Mackenzie

Date: January 10, 2012

Citation: 2012 HRTO 44

Indexed as: Shearer v. The Royal Canadian Legion

APPEARANCES AND wRITTEN SUBMISSIONS

Blake Shearer, Applicant ) Self-represented

Royal Canadian Legion, Campbellford ) Paul Smith, Q.C., Counsel

(ON BR 103) Branch, Respondent )

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 in employment on the basis of disability and on the basis of association with a person protected by a prohibited ground of discrimination under the Code. The applicant abandoned the allegation of association at the hearing of the Application.

2The hearing of this Application was scheduled for August 23, 2011 in Kingston, Ontario. A Notice of Hearing was sent to the applicant and respondent on March 22, 2011. On June 27, 2011, the applicant sent an email to the HRTO requesting that the location of the hearing be moved to Toronto.

3The HRTO schedules hearings in the closest regional centre to the location of the alleged discrimination. Kingston is the closest regional centre to Campbellford. The HRTO considers requests for changes in venue if there is a request for accommodation pursuant to a prohibited ground under the Code. In addition, a request for a change in the location of a hearing will be considered if both parties concur with the request.

4The respondent objected to the change in venue. The applicant provided no Code-related reasons for his request. Accordingly, the applicant was advised by the HRTO on July 4, 2011 that his request for a change of venue was denied.

5On August 17, 2011, the applicant sent an email to the HRTO stating that he would not be attending the scheduled hearing “due to transportation issues”. He stated that if another date was scheduled in Kingston, he would try to make arrangements to attend. He repeated that if the hearing was scheduled for hearing in Toronto, he would be able to attend. The respondent objected to the request.

6On August 19, 2011, I issued a Case Assessment Direction (CAD) denying the request for an adjournment. I ordered that the hearing be changed to a teleconference hearing, limited to the following two issues:

1. When did the respondent learn that the applicant was claiming he had a disability?

2. When did the respondent come to the decision to terminate the applicant’s employment?

7In the CAD, I stated that after hearing the evidence and submissions of the parties on these two issues, I would come to a decision on whether there was a reasonable prospect of success of the Application. For the reasons that follow, I have concluded that the Application has no reasonable prospect of success and must be dismissed.

8The applicant was hired by the respondent in June of 2008 as a bar steward. His employment was terminated on July 9, 2010.

9Jim White is the past president of the Campbellford Branch of the Royal Canadian Legion. He testified that by June of 2010, the respondent was in debt. On June 3, 2010, the Finance Committee instructed the Bar Committee to cut costs. On June 23, 2010 the Bar Committee discussed its options. A member of the committee contacted the Ministry of Labour to inquire about the process for lay-offs. At the Bar Committee meeting, it was decided that rather than reduce everyone’s hours, they would recommend that one person be laid off. The committee also decided to recommend using volunteers to staff the bar. Mr. White testified that the applicant had been the last person hired and was selected for termination of employment on this basis. The Minutes of the Bar Committee also identify some concerns about the applicant’s job performance, including appropriate dress and not completing assigned duties. The Minutes state that the Bar Committee decided to propose to the Executive Committee that the applicant’s employment be terminated and provided with two weeks pay. The Minutes also note that hours of operations of the bar were to be cut and he would be laid off in the Fall in any event. The recommendation of the Bar Committee was referred to the Executive Committee for approval. The Executive Committee was scheduled to meet on July 8, 2010.

10There is no dispute that relations between the applicant and the respondent were difficult. In his Application the applicant stated that he had been harassed by the respondent. At the hearing, he stated that he had not been harassed on a prohibited ground under the Code until July 2, 2010.

11In the Application, the applicant stated that the personal harassment lead him to visit the emergency department of the local hospital on July 2, 2010. In a note dated July 2, 2010, the doctor prescribed three to five days off work for “medical reasons … pending further assessment by his family doctor”. On July 2, 2010, the applicant sent an email to the respondent stating that “due to recent stress and harassment you have brought on me lately … I will not be at work today”. He stated in the email that his nerves were wrecked, he was sick to his stomach and not able to sleep.

12The respondent arranged for someone to take his shifts. Mr. White testified that the applicant came back to work on the fifth day of his leave. However, the respondent had already arranged for someone to take that shift. He also testified that it was the respondent’s policy that an employee on sick leave was required to have a doctor’s note indicating that he or she was ready to come back to work. The applicant did not have such a note.

13On July 8, 2010, the Executive Committee met (as scheduled) and accepted the recommendation of the Bar Committee. The Minutes of the Executive Committee refer to “some trouble with the bar steward” (the applicant) and noted the recommendation of the Bar Committee to terminate his employment without cause. The termination of employment occurred the next day. The applicant was given two weeks pay in lieu of notice.

14Mr. White testified that the respondent was never advised that the applicant had a disability. The only information the respondent received was the note from the doctor provided on July 2, 2010 and the email sent by the applicant on the same day.

15The applicant testified that he took a few days off work and was terminated for that reason. He also testified that the respondent hired a bartender after his employment was terminated. Mr. White testified that the Legion did not hire a replacement bartender until the Christmas season, when business picked up.

16The applicant stated that he was not disabled prior to July 2, 2010.

17The respondent submitted that it had to cut costs and the applicant had been the last one hired. The respondent submitted that it had no knowledge of any ongoing health issues faced by the applicant. The respondent also submitted that the applicant showed up ready to work on the fifth day of his leave and this did not demonstrate any ongoing disability or health issue. It also submitted that the Executive Committee carried out the recommendation of the Bar Committee and terminated the applicant’s employment for economic reasons.

18The applicant submitted that his employment had been terminated because of his disability. He submitted that at the Executive Committee meeting nothing was said about terminating his employment for economic reasons.

Analysis and Decision

19I have concluded that the Application has no reasonable prospect of success. The test for determining whether there is a reasonable prospect of success of an Application was set out in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9. The applicable question to answer in this Application is whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his 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.

20It is clear from the documents submitted by the parties that there were difficult interpersonal relations at the workplace. However, the applicant has not demonstrated that these difficulties had any connection to a disability. In fact, he candidly stated that his difficulties at work prior to July 2, 2010 had no connection to a disability or any other prohibited ground of discrimination under the Code. The Tribunal is not a forum for addressing general allegations of unfairness (see, for example, Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at para. 27).

21The first time the applicant advised his employer of any health issues was on July 2, 2010. The respondent provided the applicant with the requested leave.

22It is not clear from the Application or the testimony of the applicant whether he had a disability. The medical information is not specific and simply refers to “medical reasons”. The applicant self-reports that he was stressed. The applicant provided no evidence, medical or otherwise, to indicate that he had a chronic condition or ongoing disability. The Tribunal has held that, in general, temporary illnesses are not considered to be disabilities under the Code (see, for example, Moulton v. Leisureworld Caregiving Centre, 2009 HRTO 1575).

23However, even if the applicant was able to establish at a full hearing that he had a disability, this would not be sufficient to demonstrate a reasonable prospect of success. The evidence is clear that the recommendation to terminate his employment was made on June 23, 2010 and pre-dated any knowledge of the respondent of any health concerns. The Bar Committee made a recommendation to terminate his employment, which was later adopted and confirmed by the Executive Committee. Whether the recommendation was based on economic reasons or on his job performance prior to July 2, 2010 is immaterial in this proceeding. The only important fact is that the recommendation was made prior to the respondent having any knowledge of health concerns. It therefore cannot be said that the applicant’s employment was terminated, in whole or in part, on the basis of a prohibited ground of discrimination.

24Accordingly, the Application is dismissed.