Charles Arnott v. Vari-Form Corporation and Sun Capital Partners Inc., 2012 HRTO 446

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Charles Arnott

Applicant

-and-

Vari-Form Corporation and Sun Capital Partners Inc.

Respondents

decision

Adjudicator: Keith Brennenstuhl

Date: March 1, 2012

Citation: 2012 HRTO 446

Indexed as: Arnott v. Vari-Form Corporation

APPEARANCES

Charles Arnott, Applicant ) Self-represented

Vari-Form Corporation and ) Gita Anand, Counsel

Sun Capital Partners Inc. )

Respondents

1This is 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 in employment on the basis of disability, age and record of offences.

2The hearing into this matter was held December 13 and 14, 2011. In addition to the applicant’s own testimony, I heard evidence from two witnesses: John Worrall, the applicant’s supervisor and Dave Desrosiers, a co-worker of the applicant. Final submissions were provided by the parties in writing.

GROUNDS

3The applicant raised three grounds of discrimination. With respect to the ground of age, the applicant withdrew any claim of discrimination on the basis of age during the course of the hearing and confirmed in his written submissions that “I am satisfied that my age was not a source of discrimination”. Accordingly, the Application as it relates to age is dismissed.

4With respect to the ground of disability, the applicant stated in his written submissions that “I am satisfied that my having an STD was not a source of discrimination”. Accordingly, the Application as it relates to alleged discrimination on the basis of STD is dismissed. The applicant’s remaining allegations with respect to discrimination on the basis of disability (including ADHD and sleep apnea) are addressed below.

5With respect to record of offences, the applicant testified that while he had been charged with an offence he was “acquitted” and never convicted of the offence. It is clear that criminal charges for which an applicant has not been convicted do not meet the definition of “record of offences” under the Code. See de Pelham v. Mytrak Health Systems, 2009 HRTO 172 and McKenzie v. Ontario (Government Services), 2010 HRTO 1186. Accordingly, the Application as it relates to record of offences is dismissed.

BACKGROUND

6The respondent Vari-Form Corporation (“Vari-Form”) manufactures automotive parts using hydro-forming technology. It operates manufacturing facilities in Strathroy, Ontario together with a research centre. The respondent Sun Capital Partners Inc. is an investor in Vari-Form.

7The applicant was hired by Vari-Form on or about May 30, 2005 in the position of Manufacturing Engineer reporting to John Worrall, Manufacturing Engineer Manager. It is not disputed that the applicant was terminated from his employment on November 20, 2008. The dispute arises as to why the applicant was terminated. The applicant claims that his termination was as a result of his deteriorating job performance which he attributes to his disabilities, namely Attention-Deficit Hyperactivity Disorder (“ADHD”) and moderate sleep apnea. Vari-Form maintains that job performance was not at issue, that it was unaware of the applicant’s medical condition and that the decision to terminate the applicant was for business reasons only.

ANALYSIS

8For the reasons below, I am not satisfied that the applicant has demonstrated, on a balance of probabilities, that he was subject to discrimination in employment owing to a disability.

9Disability will not be found to have been a factor in an employer’s decision to terminate an applicant where the evidence establishes that the employer was unaware of the applicant’s medical condition prior to the decision to terminate the applicant’s employment. See Marchetti v. Desjardins Credit Union, 2009 HRTO 1677. It is reasonably clear that Vari-Form did not have any knowledge that the applicant had ADHD or sleep apnea or any other debilitating condition before or at the time of termination. Indeed, at the time of termination the applicant did not even know that he had these medical conditions. He testified that at the time of termination he had no medical diagnosis of either ADHD or sleep apnea. At his termination meeting he told Mr. Worell that he had concerns about losing his medical benefits now that he was terminated because he thought he might be suffering from Alzheimer’s. He subsequently was not diagnosed with this condition. The diagnosis for ADHD was only made in April, 2009 and the diagnosis of moderate sleep apnea in June 2009, months after his termination. The applicant conceded that Vari-Form did not have any knowledge of any medical conditions before or at the time the decision was made to terminate him.

10The applicant indicates, however, that leading up to his termination his work performance was deteriorating as a result of his yet to be diagnosed medical conditions. The applicant remarked in his submissions that his performance was getting so bad “I would have terminated myself for cause, for incompetence and poor work performance.” The applicant argues that his deteriorating work performance must have or at least should have alerted Vari-Form to the applicant’s disability although not yet diagnosed.

11I find that the applicant’s performance was actually quite consistent throughout his employment with Vari-Form. The applicant admitted that his employer had assessed his performance as “very good” throughout his employment. Mr. Worrall’s evidence and the applicant’s performance reviews support this. The latest performance review, dated four months prior to the applicant’s termination, rated the applicant as “very good” as did his very first performance review date July, 2006. If the applicant was lax, it was with respect to the messiness of his desk, but this appears to have been the case since the applicant started his employment with Vari-Form. As well, there seems to have been an issue with respect to the speed at which the applicant completed tasks, however, this was recognized in the applicant’s very first performance review. In my view, there was nothing in the applicant’s performance that would lead Vari-Form to conclude that the applicant was disabled by ADHD, sleep apnea or any other medical condition. In any event, even if there was a deterioration in the applicant’s work performance, as the applicant alleges, the applicant adduced no evidence that his medical condition was the reason for the deterioration.

12Mr. Worrell testified that at the time of the applicant’s termination, the auto industry was in crisis and that Vari-Form’s sales were down dramatically and costs had escalated because of the launching of a new product. He indicated that senior management made the decision to downsize the organization and that he was given the task of deciding which of the six engineers that he managed would be let go. He stated that it was hard getting rid of good employees such as the applicant. Nevertheless, it came down to the two engineers with the least seniority, the applicant and a co-worker. Mr. Worrall explained that he assessed the two engineers and determined that the applicant would not be retained.

13The applicant argues that his co-worker should have been let go because the applicant had six months seniority over the co-worker. The decision to terminate the applicant instead is, according to the applicant, evidence that he was improperly terminated. I do not agree.

14I am satisfied that the downsizing of Vari-Form was for legitimate business reasons. Five other Vari-Form employees were terminated on the same day as the applicant. Mr. Worrell testified that he preferred the applicant’s co-worker over the applicant given the co-worker’s strengths on launch issues and new equipment. He felt that the applicant was better suited to maintenance. This evidence was not challenged by the applicant.

15It is not for the Tribunal to decide whether Mr. Worrell made the correct decision in terminating the applicant. Given that I have found that Vari-Form was unaware of the applicant’s medical condition prior to the decision to terminate him was made, and given that Vari-Form had no reason to suspect that the applicant had any disability, I am satisfied Mr. Worrell’s decision to terminate the applicant was not tainted by the applicant’s medical condition.

WITNESSES

16The applicant had originally requested that Tribunal provide him with eleven summons to witness in blank form.

17By Case Assessment Direction dated November 22, 2011 the Tribunal directed the Registrar to provide the summons to witness to the applicant upon the applicant filing with the Tribunal witness statements for the proposed witnesses and upon the Tribunal being satisfied the expected evidence of the witnesses would be . relevant.

18The witness statements having been filed with the Tribunal, the Tribunal determined that the proposed evidence of two of the proposed witnesses was repetitious and directed that they not be summonsed.

19Of the remaining nine witnesses all were employees of Vari-Form with the exception of Mr. Worrell who had only recently left Vari-Form to pursue another work opportunity. Of those witnesses, four were also to be witnesses for the respondents, including Mr. Worrell and Mr. Derosiers.

20At the hearing, after taking the evidence of the applicant, Mr. Worrell, who was the key witness and decision maker, and Mr. Desrosiers, and having considered the documents, including the witness statements filed bv the parties, I concluded that there was, , no reasonable prospect that the applicant would be able to show that the decision made by Mr. Worrell to terminate the applicant’s employment with Vari-Form was other than for legitimate business reasons untainted by his alleged disabilities.

21Although Mr. Worrell and Mr. Desrosier were called as witnesses by the applicant, their testimony was not supportive of the applicant and, fundamentally contradicted the will say statements filed on their behalf by the applicant. These statements were authored by the applicant and according to the applicant were based on what the applicant “expected” his witnesses to say in support of his claim. The will say statements filed by the applicant for the remaining seven witnesses, were also authored by the applicant based on what he expected them to say. Of these proposed witnesses two were to be called by the respondent as well and will say statements were provided for them by the respondent. These will say statements fundamentally contradicted the statements provided by the applicant. .

22The applicant’s case turned on the respondent’s decision and action. The key witness was Mr. Worrell who was the decision maker. His evidence, which was educed by the applicant, was logical, reasonable and consistent with the documentary evidence. Based on his evidence I was satisfied that his decision to terminate the applicant was not discriminatory. Having arrived at this conclusion, I determined that there would be little served by hearing from the remaining witnesses particularly given my underlying concern as to the reliability of the will say statements provided by the applicant.

23In Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 the Tribunal dealt extensively with the principle that a hearing should not continue if it cannot succeed. The Tribunal stated at para. 25 and 26 as follows:

There are many cases, including the present one where the O’Malley definition is not helpful in getting at the merits of the question of whether the application should be dismissed without hearing all the evidence. It may be that there are one or two key witnesses who should be heard before deciding whether there is reason to hear more evidence. Where, as here, the case turns on the respondent’s reasons for decisions and actions, the key witness is the decision maker, who would normally be called by the respondent.

I believe that it is neither appropriate or principled that the hearing continue when there remains only a theoretical possibility and no reasonable prospect that evidence that could meet an applicant’s burden of proof will come forward. Here, for example, to succeed in his Application the applicant must show that the individual respondent’s stated reasons for her actions – to improve the applicant’s performance and address staff concerns – are in fact a pretext and that his disability or the intention to the reprise were factors in her actions. If, as I conclude below, having heard the individual respondent’s evidence and the applicant’s theory and intended evidence, there is no reasonable prospect that the other proposed evidence of the applicant or the respondent could change this conclusion, this should put an end to the matter.

24Based on the evidence that I heard, I concluded that there was no reasonable prospect that the other evidence proposed to be called would have shown that the applicant’s termination was discriminatory contrary to the Code. Given this conclusion I put an end to the matter.

25The Application is dismissed.