Hassen Fedda v. Tony Graham Motors (1980) Limited, 2012 HRTO 61

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hassen Fedda Applicant

-and-

Tony Graham Motors (1980) Limited Respondent

DecisION

Adjudicator: David Muir Date: January 11, 2012 Citation: 2012 HRTO 61 Indexed as: Fedda v. Tony Graham Motors (1980) Limited

Appearances

Hassen Fedda, Applicant ) Self Represented Tony Graham Motors (1980) Limited, ) Respondent ) Sean D. Taylor, Counsel

1This is an Application filed pursuant to section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). In his Application the applicant alleges discrimination in employment on the basis of disability.

2In Case Assessment Direction dated August 10, 2011 the respondent’s request for a summary hearing was granted and a hearing by telephone conference call was held on January 10, 2012.

Background

3The applicant states that he began his employment with the respondent in March 2009. The applicant was injured in a motor vehicle accident on September 27, 2009 and was off work for several months as a consequence of his injuries, which include injuries to his eyes, lower back and neck. Since the accident the applicant states that he also suffers from migraine headaches.

4The applicant returned to work on modified duties in June 2010. The applicant’s duties after the accident included performing oil changes, checking tire pressure and lubricating door locks and hinges. He was not permitted to work in the “shop” or the “back” as it was referred to by the applicant. The applicant’s mobility was somewhat limited and consequently he could not work under vehicles. There were also concerns in this regard about the heat, dust and oil associated with shop work that would bother his eyes even with the eye protection provided. These limitations were accommodated according to the applicant.

5In October 2010 the applicant sent an email to his boss, Rick Acres, about some “concerns and worries” he had regarding health and safety issues related to his injuries and to reiterate that he wanted to be an auto mechanic and was willing to work hard towards that goal. Mr. Acres responded in a cryptic way indicating that for the foreseeable future the applicant would perform his current duties and would not be going into the shop. The email also stated that the applicant should not be lifting things and to take care for his health.

6A couple of weeks after he sent the October email, the applicant took over the team captain role when the incumbent left for another position. The applicant states that he took over the role on his own, but received no formal training in how to do the work. The applicant states that after about a week of performing the team captain function he was accused of stealing. The applicant denies that he was stealing and believes that what the employer had detected were mistakes in record keeping he had made in part because he had not been properly trained and was simply doing what he had observed his predecessor do. The applicant was terminated on November 9, 2010 for stealing from the employer.

7In response to questions from me at the hearing, the applicant indicated that he sent the October email to Mr. Acres to ensure that his employer was aware that he was still seeking to move forward as an apprentice mechanic and was willing to work hard to achieve that goal despite his limitations. He stated that he interpreted the response that he would not be moving to the shop in the “foreseeable future” as meaning that his future prospects with this firm were limited. The applicant did not query Mr. Acres about his email response or what he meant by its cryptic message.

8The applicant believes that it is not merely coincidence that a few weeks after he sent the email, the employer found a reason to terminate his employment. However, in response to a question from me, the applicant confirmed that he understood that the employer thought that he was stealing from them.

Analysis

9I find that this Application has no reasonable prospect of success because the applicant is unable to point to any evidence that his termination was informed by the fact that he was a person with a disability.

10Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

11Details 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.

12The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an application, an applicant must be able to prove, on a balance of probabilities, a link between a respondent’s alleged actions and a Code ground. In this case if this Application were to proceed to a hearing on its merits, the applicant would be required to show a link between the fact that he was a person with a disability and the respondent’s decision to dismiss him from employment.

13The applicant relies entirely on the timing of events. He states, as set out above, that roughly three weeks after he wrote the email above he was accused of stealing. The applicant does not deny that he made mistakes and that there was a real issue but states that the respondent used the accusation as a pretext to be rid of him in light of the email. However, the applicant also stated that in sending the email he was not asking the employer to do anything and was not suggesting any changes to the status quo. Further, he agreed that there was no new information in it – the employer had been aware of his limitations since his return in June.

14The real issue for the applicant is the unfairness of his termination and its potential consequences for him in the future. The applicant stated more than once during the hearing that while he accepted responsibility for what had happened because he was the team captain, he did not steal from the employer and notwithstanding their formal position to this day he believes that they knew that he had not at the time. He also stated on more than one occasion that what caused him to file this Application was the fact that his employer has indicated to a third party when asked, that the applicant had been terminated for stealing from them. The applicant believes, not unreasonably, that this might affect his prospects in the future. The applicant also believes very strongly that he was not stealing from the employer and that his termination was unfair.

15The applicant may well be right that his termination was unfair, but the Tribunal is not the forum in which to challenge the fairness of his termination or the veracity of the allegations made against him. In order to ultimately succeed with his Application at a merits hearing, the applicant must be able to establish, with evidence and on a balance of probabilities, a link between the ground claimed, disability, and the decision making of the employer. The applicant has only the coincidence in timing between the October email, which asks nothing of the employer, but simply provides information that the applicant agrees the respondent already had, and his subsequent termination for reasons which the applicant acknowledges were real in the sense that the respondent apparently believed them to be true, even if they were not in fact. This coincidence in timing without anything else would be insufficient to establish the necessary link, and as such, there is no reasonable prospect that this Application would be successful should it proceed to a merits hearing.

16Accordingly this Application is dismissed.