Cory Rhijnsburger v. Wal-Mart Canada Corp., 2013 HRTO 1109

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cory Rhijnsburger

Applicant

-and-

Wal-Mart Canada Corp.

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: June 21, 2013

Citation: 2013 HRTO 1109

Indexed as: Rhijnsburger v. Wal-Mart Canada Corp.

appearances

Cory Rhijnsburger, Applicant ) Gavin Magrath, Counsel

Wal-Mart Canada Corp., ) Joel Thomas, Counsel Respondent )

INTRODUCTION

1The purpose of this Interim Decision is to decide whether the Application should be dismissed in whole or in part on a preliminary basis because it has no reasonable prospect of success. The parties attended a summary hearing where they had the opportunity to make oral submissions and present documents and cases, which addressed this issue.

BACKGROUND

2With the exception of the termination of the applicant’s employment, the facts in this case are largely not in dispute.

3The applicant was employed as a full-time sales associate at a Wal-Mart store. In September 2011, the store’s management notified the applicant that he needed to make any necessary lifestyle changes and open his availability for shifts by November 2011. The store’s management informed the applicant that the change was necessary to meet the demands of the store, to ensure fairness and consistency in scheduling, and to ensure that he maintained his full-time status.

4In October 2011, the applicant submitted a doctor’s note to the store’s management, which requested that the store accommodate his disability-related needs. Specifically, the doctor’s letter stated that the applicant had “multiple chronic medical conditions”, indicated that he needed accommodation with respect to both work and school, and recommended as an accommodation that he not work at the store prior to noon more than one day per week.

5The applicant subsequently informed the store that his schedule of availability was as follows:

• Saturday: 9:00 a.m. to 6:30 p.m.
• Sunday: 2:30 p.m. to 11:00 p.m.
• Monday: 4:00 p.m. to 11:00 p.m.
• Tuesday: not available
• Wednesday: 4:00 p.m. to 11:00 p.m.
• Thursday: not available
• Friday: 3:00 p.m. to 11:00 p.m.

He also submitted a further doctor’s letter, which stated that his schedule of availability was “appropriate in consideration of his medical conditions”, and that his work hours should not be reduced.

6Between November 2011 and February 2012, the applicant and the store’s management had an ongoing dispute about the applicant’s availability for work. The store’s management informed the applicant that his medical documentation only recommended that he not work at the store prior to noon more than one day per week, and that it therefore expected him to be available for work between 12:00 p.m. and 11:00 p.m. every other weekend, and 12:00 p.m. and 11:00 p.m. four days per week. The store’s management assigned the applicant shifts in accordance with this expectation.

7The applicant, on the other hand, refused to work shift times outside of his schedule of availability, and, in order to maintain his full-time hours, worked shifts that had not been assigned to him. He also accused the store’s management of harassing him, negatively affecting his mental health, and failing to accommodate his disability-related needs and life obligations (particularly school). He also informed the store’s management that he was in contact with the Ontario Human Rights Commission.

8In December 2011 and January 2012, the store’s management requested that the applicant provide his school schedule and updated medical documentation to justify his schedule of availability. The applicant failed to provide any further documentation, and in January and February 2012, he was disciplined twice for attending shifts late and creating his own shifts.

9On February 17, 2012, the applicant filed an Application with the Tribunal under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents subjected him to discrimination and harassment because of his disability and reprisals with respect to employment. His main allegation was that the respondents failed to accommodate his disability-related needs and his life obligations (particularly school) by scheduling him for shifts outside of his availability, and by refusing to assign him sufficient shifts within his availability to maintain full-time hours. However, he also alleged that the respondents subjected him to harassment by demanding that he open up his availability, and subjected him to a threat of reprisal (termination of employment) if he failed to do so.

10On March 1, 2012, the applicant was called into a meeting with the store’s management. An incident occurred, which is in dispute between the parties, but which resulted in the applicant being removed from the store by the police, and the termination of his employment.

11On April 16, 2012, the respondents filed a Response to the Application, which denied the allegations of discrimination, harassment and reprisal. The respondents stated that the store had a right to assign shifts to the applicant in accordance with its business needs, that it accommodated the applicant’s disability-related needs in accordance with his doctor’s recommendation, and that he failed to substantiate a need for further accommodation. The respondents also stated that the store terminated the applicant’s employment because he slammed a door against the store manager.

12On May 1, 2012, the applicant filed a Reply to the Response, which stated that he did not provide his school schedule and updated medical documentation to the store’s management because he had received legal advice not to do so. The applicant denied that he slammed a door against the store manager. He alleged that the store’s management set him up for termination by using his emotions, which were related to his disability, against him.

13On September 21, 2012, the Tribunal issued a Case Assessment Direction, which directed that a summary hearing be held to decide whether the Application should be dismissed on a preliminary basis because it has no reasonable prospect of success. An in-person summary hearing took place on January 22, 2013.

ANALYSIS

14Rule 19A of the Tribunal’s Rules of Procedure provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 (“Dabic”) at paras. 8-10:

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

15The Tribunal does not have the power to deal with general allegations of unfairness. 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. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.

16The Application relates to ss. 5, 8, 9, 11 and 17 of the Code, which provide:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of… disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of… disability.

(…)

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

(…)

11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances…

(…)

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

(…)

17. (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

17The summary hearing dealt with the applicant’s two allegations of discrimination/harassment and reprisal. The first allegation, which was set out in the Application, relates to the scheduling of the applicant’s shifts. The second allegation, which was set out in the Reply and expanded on at the summary hearing, relates to termination of the applicant’s employment.

18I will begin with the first allegation. The focus at the summary hearing was on the first branch of the Dabic test, namely, whether assuming the allegation is true, it has a reasonable prospect of success. In his submissions, the applicant’s counsel stated that the applicant has established a prima facie case of discrimination because he has disabilities (depression, anxiety, insomnia, and Asperger syndrome), and he requested accommodation of his disability-related needs, by way of letters from his doctor, in scheduling. He stated that the respondents have the burden of establishing that they could not accommodate the applicant’s disability-related needs in scheduling up to the point of undue hardship, and that the appropriate forum to deal with this issue is at a merits hearing.

19I disagree. The applicant’s counsel’s submissions on this issue glossed over the facts, which may be summarized as follows:

• In September 2011, the store’s management notified the applicant that he needed to make any necessary lifestyle changes and open his availability for shifts by November 2011. At this point, the applicant had not notified the store’s management that he had disability-related needs. Furthermore, he has not subsequently alleged that the store’s management singled him out at that time because of his disability.
• In October 2011, the applicant submitted a doctor’s note to the store’s management, which recommended that the store accommodate his disability-related needs by not scheduling him to work at the store prior to noon more than one day per week. The store’s management complied with this recommendation.
• The applicant subsequently provided the store with a schedule of availability, which had unexplained unavailability between 6:30 p.m. and 11:00 p.m. on Saturday, 12:00 p.m. and 2:30 p.m. on Sunday, 12:00 p.m. and 4:00 p.m. on Monday, 12:00 p.m. and 11:00 p.m. on Tuesday, 12:00 p.m. and 4:00 p.m. on Wednesday, 12:00 p.m. and 11:00 p.m. on Thursday, and 12:00 p.m. and 3:00 p.m. on Friday.
• The applicant also submitted a further doctor’s letter, which stated that his schedule of availability was “appropriate in consideration of his medical conditions,” and that his work hours should not be reduced. However, the letter did not address why the applicant was unavailable for work during the above times, and, unlike the first letter, did not indicate that he could not attend work at certain times because of his medical conditions.
• Between November 2011 and February 2012, the applicant and the store’s management had an ongoing dispute about the applicant’s availability for work. The store’s management requested that the applicant provide his school schedule and updated medical documentation to justify his schedule of availability, but the applicant failed to do so, and in January and February 2012, he was disciplined twice for attending shifts late and creating his own shifts.

20This Tribunal and the courts have made it clear that the person seeking accommodation has a duty to make his or her Code ground-related needs known to the respondent in order to trigger the respondent’s duty to accommodate the person’s needs up to the point of undue hardship. See, for example, MacDonald v. Cornwall Public Library, 2011 HRTO 1323; Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362; and Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. In MacDonald, supra, where the applicant alleged that a library discriminated against him with respect to services because of his disability, the Tribunal explained at para. 42:

(…) The onus must be on the individual seeking accommodation to advise the library that he or she needs accommodation. Otherwise, the library would be in the very difficult position of having to accommodate persons whose needs it had no means of knowing or investigating. The duty to cooperate as set out in the Renaud case must include an obligation to advise the service provider of the need for accommodation. It is this notice which triggers the duty to accommodate.

21In the case at hand, the applicant made his disability-related needs known to the store’s management with respect to his unavailability for work before noon six days per week, but failed, despite two requests by the store’s management, to make his disability-related needs known with respect to his unavailability for work at numerous other times during the week. As such, he ultimately failed to fulfill his duty to make any further disability-related needs known to the store in order to trigger its duty to accommodate his needs up to the point of undue hardship. Furthermore, contrary to the applicant’s suggestion in his Application, the Code did not require the store to accommodate his school-related needs.

22In these circumstances, the applicant’s allegation that the store’s management failed to accommodate his disability-related needs up to the point of undue hardship in scheduling has no reasonable prospect of success. Flowing from this, the applicant’s sub-allegations that the store’s management subjected him to harassment because of his disability by demanding that he open up his availability, subjected him to a threat of reprisal (termination of employment) for refusing to do so, and subjected him to actual reprisals (disciplining him for attending shifts late and creating his own shifts), also have no reasonable prospect of success. Moreover, the applicant did not allege that the respondents subjected him to threats of reprisal and actual reprisals because he claimed and enforced his rights under the Code, or instituted and participated in proceedings under the Code.

23The individual respondent shall be removed from the title of proceeding because the applicant did not identify her as a respondent in his second allegation.

24I now turn to the second allegation. The focus at the summary hearing was on the second branch of the Dabic test, namely, whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that the store subjected him to discrimination because of his disability and a reprisal when it terminated his employment. In his submissions, the applicant admitted that he was upset, but denied that he slammed a door on the store manager. The applicant’s counsel stated that it is “obvious” that the applicant has a communication disorder, and that the store had a duty to accommodate his disability-related needs. Instead, he stated that the store’s management took advantage of the applicant’s disability-related emotional state and “worked him up”, which resulted in the termination of his employment. The applicant also stated that shortly before the termination, he told the store manager, “I will see you at the Tribunal.”

25In its submissions, the store stated that this allegation does not have a reasonable prospect of success because it did not have any details about the nature of the applicant’s disabilities prior to the termination of his employment, and did not receive his human rights Application until after the termination. The store stated that it terminated the applicant’s employment solely because he violated its zero tolerance policy with respect to violence by slamming a door on the store manager.

26In my view, this allegation has a reasonable prospect of success. The parties’ proposed evidence with respect to various issues is conflicting, including whether or not the applicant was violent, the applicant’s conduct was disability-related, the store knew or ought to have known that the applicant’s conduct was disability-related, the store took steps to accommodate any disability-related behaviour, the applicant claimed and enforced his rights under the Code, and the store terminated the applicant’s employment as a reprisal for claiming and enforcing his rights under the Code or instituting and participating in proceedings under the Code. The appropriate forum to properly resolve these factual and legal disputes is at a merits hearing, not a summary hearing.

NEXT STEPS

27The termination of the applicant’s employment occurred after he filed his Application. His second allegation was initially made in his Reply, and further details were then provided orally at the summary hearing. For the sake of clarity, within 28 days of the date of this Interim Decision, the applicant shall deliver to the respondent and file with the Tribunal an amended Application, which formally sets out the details of his allegation of discrimination and reprisal with respect to the termination of his employment. Within 28 days of receiving the amended Application, the respondent shall deliver to the applicant and file with the Tribunal an amended Response. Within 14 days of receiving the amended Response, the applicant may deliver to the respondent and file with the Tribunal an amended Reply.

28The parties have already attended a mediation at the Tribunal. As such, the Registrar will schedule a two-day hearing of the merits of the Application.

29Prior to the summary hearing, the applicant requested that the Tribunal accommodate certain disability-related needs during the summary hearing process. Within 14 days of the date of this Interim Decision, the applicant shall notify the respondent and the Tribunal’s Registrar of any further request for accommodation of disability-related needs during the hearing process. A copy of the Tribunal’s Policy on Accessibility and Accommodation is attached to this Interim Decision.

ORDER

30The Tribunal makes the following orders and directions:

1. The applicant’s allegation of discrimination, harassment and reprisal in his original Application is dismissed.
2. The style of cause is amended to remove the individual respondent as a respondent from the title of proceeding.
3. The applicant’s allegation of discrimination and reprisal with respect to the termination of his employment shall proceed to a two-day merits hearing.
4. Within 28 days of the date of this Interim Decision, the applicant shall deliver to the respondent and file with the Tribunal an amended Application, which formally sets out the details of his allegation of discrimination and reprisal with respect to the termination of his employment.
5. Within 28 days of receiving the amended Application, the respondent shall deliver to the applicant and file with the Tribunal an amended Response.
6. Within 14 days of receiving the amended Response, the applicant may deliver to the respondent and file with the Tribunal an amended Reply.
7. Within 14 days of the date of this Interim Decision, the applicant shall notify the respondent and the Tribunal’s Registrar of any further request for accommodation of disability-related needs during the hearing process.

31I am not seized of this matter.