Winn v. Costco Wholesale Canada Ltd., 2012 HRTO 990

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeff Winn

Applicant

-and-

Costco Wholesale Canada Ltd.

Respondent

DECISION

Adjudicator: Ian R. Mackenzie

Date: May 16, 2012

Citation: 2012 HRTO 990

Indexed as: Winn v. Costco Wholesale Canada Ltd.

APPEARANCES

Jeff Winn, Applicant ) Self-represented

Costco Wholesale Canada ) Michael Horvat, Counsel

Ltd, Respondent )

1Jeff Winn filed 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, sexual orientation and reprisal or threat of reprisal.

2A hearing in this Application was scheduled for October 27, 2011. The applicant failed to meet his disclosure requirements under the Tribunal's Rules. I issued a Case Assessment Direction on September 26, 2011 with the following directions:

a. The applicant will immediately deliver to the respondents and file with the Tribunal a detailed summary of the expected evidence (will-say statements) of witnesses he intends to call to testify. If he intends to call no witnesses other than himself, he shall advise the respondents and the Tribunal. Specific events should be described and, if possible, specific dates should be given.

b. The applicant will immediately confirm whether he is prepared to confine his evidence to the issues and allegations made in the Application in which case the Application will serve as his will-say statement. If the applicant has additional evidence he will immediately deliver a detailed will-say to the respondents and file it with the Tribunal.

3The applicant did not comply with these directions. At the commencement of the hearing, the respondent made a motion to dismiss the Application on the basis of no reasonable prospect of success. I heard the submissions of the respondent and the applicant and adjourned the hearing. This decision addresses the respondent's motion.

4The applicant stated that he was relying on his Application as the summary of his intended testimony.

Background

5The applicant was employed as a bakery manager at the time of the filing of his Application (August 25, 2010). His employment was subsequently terminated (January 26, 2011) but this event is not included in his Application.

6The applicant was employed as a bakery manager and assigned to a Costco location in Mississauga. In his Application, the applicant alleges that the meat manager in the respondent’s Mississauga location repeatedly made comments related to his sexual orientation over a six year period. It is not specified when the comments were made.

7In November of 2009, the applicant left work and applied for short-term disability benefits, which were subsequently approved by the insurance provider. When he returned to work in June of 2010, he was re-located to a new work location for modified duties and re-training. He alleges that he has had numerous "uncomfortable conversations" with senior management. At the first meeting, to discuss employment modification duties, the applicant states that he was told that he was a failure as a bakery manager; that he was temporarily being re-located to a bakery at a different location for re-training; was asked why he was on short-term disability (which he answered); that due to his disability, he should accept a demotion; that if he returned to his original position, the employer would find a way to demote him; and that the temporary manager who replaced him did not want to work with him.

8In another conversation at the Brampton location, the applicant was told that he would be permanently relocated to the Brampton location, despite recommendations from his physician that relocation would hinder his recovery. He was also told that it was in his best interests to demote himself to an hourly position and if he did not do so voluntarily there were ways that it could be done. He was also provided with a performance review that was negative. He also alleges that there were negative and harassing comments made at the Brampton location that included: describing his job as "not rocket science," that he spent too much time in the office, that he made his own schedule (although he was not provided with a schedule), and that he was not motivated.

9The applicant states that as a result of what he has experienced, his medical condition has deteriorated and he was on long-term disability (at the time he filed his Application).

10The respondent states in its Response that the applicant had been subject to performance management efforts since at least July of 2008.

Submissions

11The respondent submitted that the Application contained only bald allegations and that the applicant has not provided sufficient particulars of the alleged discrimination. In addition, it submitted that the applicant has not shown any connection between the alleged events and a breach of the Code.

12The respondent submitted that there were no particulars provided in connection with the allegations of reprisal or threat of reprisal.

13The respondent objected to the timeliness of the allegations relating to the allegations of harassment and poisoned work environment.

14The respondent submitted that the applicant provided no medical evidence to support his claim of a disability.

15The respondent submitted that there was no reasonable prospect of success of the Application because the applicant could not demonstrate a link between the allegations and a prohibited ground of discrimination.

16The respondent submitted that the onus is on the applicant to provide sufficient grounds to support a prima facie case of discrimination (Chau v. Olymel S.E.C.\L.P. 2009 HRTO 1386 at para. 34). It is not appropriate to allow the applicant to make out his case now by providing further particulars at the hearing (Zaki v. Ontario (Community and Social Services) 2011 HRTO 1797 at para. 22).

17The respondent submitted that there was no reasonable prospect of success and the Application should be dismissed on this basis.

18The respondent also requested that the Application be dismissed as an abuse of process and as a vexatious claim.

19The applicant apologized for not providing the information as directed by the CAD.

20The applicant submitted that he did have documentation to support his Application but did not have the finances or capability to bring the documentation forward.

21He submitted that his story was contained in his Application and he had nothing to add.

22The applicant submitted that it did not matter to him whether the Application was dismissed or not.

Decision

23The Tribunal can hold a summary hearing 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 (Rule 19A).

24The inquiry during a summary hearing was 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.

25The Tribunal has no jurisdiction over allegations of general unfairness, as noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17:

For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.

26In his Application, the applicant states that he believes he was reprised against due to a disability and sexual orientation. However, he has not provided any particulars to support his belief. The reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s human rights under the Code: Noble v. York University, 2010 HRTO 878 at para. 31. The applicant has not identified a reprisal or threat of reprisal for raising his rights under the Code. As a result, there is no reasonable prospect that he will be able to prove a reprisal or threat of reprisal.

27The applicant has made allegations of harassment on the basis of sexual orientation, over a six year period. The time limit for raising allegations under the Code is one year from the date of the incident or from the date of the last incident of a continuing series of events (section 34 of the Code). The Rules require that an Application "set out all the facts that form the substance of the allegations of discrimination including the circumstances of what happened, where and when it happened". The applicant has not set out when these alleged comments were made. It is therefore not possible to determine if any of the comments were made within the time limit set out in the Code. As noted in Zaki, it is not fair to the respondent to allow the applicant to provide further particulars only at the hearing. This is especially the case when the applicant was provided an opportunity to provide further particulars in the CAD issued less than a month prior to the hearing. In addition, the applicant has provided no explanation that would demonstrate that any delay was incurred in good faith. In these circumstances, I conclude that there is no reasonable prospect of success with regards to the allegations of discrimination on the basis of sexual orientation.

28The allegations relating to disability mostly relate to the applicant's work assignment on his return to work and alleged comments about his work performance. He has not shown any connection between the assignment or the comments and the ground of disability. The applicant also asserts that he was relocated to a different work location contrary to the recommendation of his physician. He has not provided any documents to support this assertion and consequently it is simply a bald allegation. This leaves his allegation that he was asked to voluntarily demote himself from a manager position because of his medical history. The applicant states that he was told that if he did not do so voluntarily, “there were ways that it could be done” and that if he returned to his original position the employer “would find a way” to demote him. The alleged comments relate to discussions about modified duties and return to work arrangements. A change in positions or a reduction in pay as part of accommodating a disabled worker is not automatically considered discriminatory (Duliunas v. York-Med Systems, 2010 HRTO 1404 at para. 72). The allegation of a threat of demotion is not sufficiently developed in the Application to demonstrate a reasonable prospect of success. As noted, the applicant did not provide a summary of his intended testimony that would have explained the context of these alleged comments. Depending on the circumstances, an employer can demote an employee if a job cannot be modified to meet the employee’s limitations. At the time of the discussion there was no agreement that the applicant would be returning to his original position. The applicant and the respondent were discussing a modified return to work, not an immediate return to his original position. The applicant did not agree to a demotion, nor was he demoted. In fact, shortly after this alleged conversation, he went on long-term disability.

29I have therefore concluded that there is no reasonable prospect of success of the Application.

30The respondent asked that I also find the Application to be an abuse of process. There is not sufficient evidence to come to such a conclusion.

31The Application is dismissed.