Melvin Terry Kinden v. Richcraft Construction Ltd., 2013 HRTO 1549

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Melvin Terry Kinden

Applicant

-and-

Richcraft Construction Ltd.

Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: September 16, 2013

Citation: 2013 HRTO 1549

Indexed as: Kinden v. Richcraft Construction Ltd.

APPEARANCES

Melvin Terry Kinden, Applicant

Self-represented

Richcraft Construction Ltd., Respondent

John Dempster, Counsel

Introduction

1This Application was filed on October 29, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that he was discriminated against in his employment on the basis of his sex, sexual orientation and disability.

2By Case Assessment Direction dated June 13, 2013 (the “CAD”), the Tribunal determined that a summary hearing would be held to hear the parties’ submissions on whether the Application has a reasonable prospect of success.

3The summary hearing was held by teleconference on September 11, 2013. The applicant made submissions on the summary hearing. Towards the end of the respondent’s submissions, the applicant hung up from the call. He subsequently advised the Tribunal that he had an anxiety attack during the summary hearing and was awaiting the Tribunal’s decision.

ANALYSIS

Background

4The applicant was hired by the respondent on January 17, 2012. The applicant did well for the first 2-3 months of his employment. The respondent alleges that the applicant’s behaviour at work became concerning and the applicant’s supervisors met with the applicant on or about July 11, 2012 to discuss his behaviour. At that meeting, the applicant’s supervisors asked the applicant to go and see a doctor and get medical assistance.

5The applicant provided a transcript of the meeting on July 11, 2012. The following extracts are taken from that transcript:

Respondent: Terry I have to be one with the people to be hearing things like that. OK I am here to work with you, since you have been here I worked with you, listen to me, every time you ask to go home, I have to ask because you’re a good worker, you work hard with me, I always say just put your regular hours, I respect you and you’re a good worker and I want to help you, it’s simple like that, but right now I’m asking you, are you going to see your doctor on Friday.

Applicant: Bernie I have a disability and what I say to the office and you is personal and confidential. I’m just telling you what needs to be told to you, that’s why I’m telling you, she was to send it yesterday.

Respondent: you have to understand you are working with me, now we are going to forget everything. OK you right now for your doctor, if you need vacation. Can you put it in your mind that Yannick and me are here to help you, so don’t take me and him as a threat. I am going to ask you Terry, and you’re not sure, personally I think you should leave because Terry, you’re working with me right now, take that as a friend, I see you different now, you’re not the same guy. Listen to me Terry you have to help yourself, so me now I suggest you try to help yourself a little bit. If you need a little bit of time Terry, I’m going to ask you to take a little bit of time, go see your doctor, then I want you to come back, I want you to come back to work for me Terry, but I’m going to ask you one thing. You’re going to have to give me something from your doctor, a paper. I’m here to help you and I believe in you, but that’s something you’re going to have to help yourself.

Applicant: I will call my doctor and if he can’t see me I will have to go to the emergency.

Respondent: and if we need a week we need a week, and if you have to go for a month or two it’s not like someone is going to get fired, if they need help I am going to work with my office. I have an employee, if he needs help I will arrange something... Tomorrow I’m going to talk to my guy and I’m pretty sure he’s going to say you go see your doctor and give us the paper and we go from there. Your doctor advise how we are going to do that OK we go like that.

6On July 13, 2012, the applicant went to a doctor. He advised the respondent that he could not get a doctor’s note because he did not have documentation from the employer regarding the type of medical note that it required. The applicant refers to an invoice from Appletree Medical Group Inc. dated July 13, 2012 in the amount of $153.00 that he provided to the Tribunal. It appears that the payment to Appletree was refunded to the applicant on that same day - July 13, 2012.

7On July 13, 2012, the applicant spoke to his supervisor. The respondent states it advised the applicant that it did not require medical clearance to return to work, rather, it wanted the applicant to obtain medical help “to get things back on track at work”. During that phone call, the applicant allegedly said “I know where this is going. I am not afraid to die. This is in God’s hands now”.

8On July 16, 2013, the applicant’s employment was terminated because of the alleged threat. The respondent states the applicant’s employment was terminated to protect the safety of its staff.

Test for Summary Hearings

9Summary hearings are provided for under Rule 19A.1 of the Tribunal’s Rules of Procedure. It reads as follows:

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.

10Rule 19A requires me to determine whether the Application, in whole or in part, has no reasonable prospect of success. If a finding is made that the Application has no reasonable prospect of success, it is dismissed. In the absence of such a finding, the Application continues to proceed through the Tribunal’s procedure.

11In determining whether an Application has a reasonable prospect of success, the Tribunal will consider one of two questions. Does the allegation of discrimination amount to a Code violation at law; or, can the applicant draw a link between the claim and the alleged prohibited ground of discrimination? The meaning of “reasonable prospect of success” is explained more fully in the case of Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 - 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 issue in this case is whether on the facts set out in the Application, the applicant can draw a link between the termination of his employment and a prohibited ground of discrimination.

13The respondent alleges that the July 2012 meeting took place between the applicant and his supervisors because of a complaint that it had received by a female worker. The female worker reported to the respondent that she felt intimidated and afraid of the applicant when he became upset over a parking issue. The applicant’s supervisors wanted to work with the applicant, but needed to know what was going on with him medically.

14The respondent argues the applicant has not filed any medical records which show he has a disability. It argues further that at no time, did the applicant ask for accommodation. Finally, the respondent argues if the applicant did have a disability, there is no medical documentation to establish that he had the capacity to work.

15There is no evidence called at summary hearings. At this stage in the Tribunal’s process, no documentation has been produced by the parties. As such, it is not surprising that medical documentation has not been provided by the applicant. That being said, the issue on the summary hearing is whether the Application has a reasonable prospect of success. In order to determine this issue, the Tribunal can inquire into the evidence the applicant has or expects to have to establish a link between the alleged treatment and a prohibited ground of discrimination.

16The applicant alleges that he was terminated because of his sex, sexual orientation and/or disability. He alleges that he was called names including “thief”, “fag” and “little girl”. However, the thrust of the Application relates to the termination of his employment because of his disability. The applicant states he was diagnosed with social anxiety in 2002. The respondent states that in the July 2012 meeting, the applicant advised he had a mental illness close to Schizophrenia and had stopped taking his medication. The applicant states he did not need accommodation for his disability, that the only accommodation he required was respect.

17The issue in this case is whether the applicant’s disability was a factor in the decision to terminate his employment.

18For the purposes of this decision, I am prepared to accept that the applicant has a disability. It also appears that the applicant’s alleged conduct, which led to his termination, may have been linked to his disability. It is clear that in requesting the applicant seek medical help, the respondent questioned the applicant’s capacity to work without that assistance.

19During the summary hearing, I asked the applicant what evidence he had or expected to have about his capacity to work in July 2012. He advised me that he went to the doctor; however the doctor referred him to a psychiatrist. The applicant stated the doctor was not able to give an opinion regarding his ability to work because he did not know the applicant’s physical or medical condition. The applicant was not able to obtain assistance from the psychiatrist because of the cost of that assistance. The applicant stated there was medical documentation in the file, but he could not locate it at this time. He did not explain what file he was referring to. The Application refers to a medical certificate in 2002 and a medical certificate in 2012. The 2002 certificate diagnosing the applicant with panic attacks was produced by the applicant. The 2012 certificate was not. The applicant advised that he would forward the document to the Tribunal and to the legal counsel for the respondent.

20On the basis of the submissions before me, I am unable to determine that this Application has no reasonable prospect of success. The applicant may be able to establish a link between his disability and the termination of his employment in that the behaviour that led to his termination may have been caused, in part, by his disability. It appears that the central issue in this case is whether the applicant had the capacity to work in July 2012.

21I am, therefore, directing that the hearing be set down for one day, at which time, the applicant will be required to call his case. The question of reasonable prospect of success can be re-visited at the conclusion of his case, if appropriate. In the event that the Application is found to have no reasonable prospect of success at that time, it will be dismissed. If a decision is made allowing the hearing to proceed, further hearing dates will be set so that the respondent can call its case.

ORDER

22I am making the following orders/directions:

a. The matter will proceed to a one-day hearing, at which time the applicant will be required to call his case;

b. All parties will be required to disclose their arguably relevant documents in compliance with Rule 16.1. The applicant must disclose medical documentation regarding his capacity to work in July 2012;

c. Only the applicant will be required to disclose and produce the documents he intends to rely on at the hearing in compliance with Rule 16.2;

d. Only the applicant will be required to produce a witness list and summaries of evidence in compliance with Rule 17;

e. At the conclusion of the applicant’s case, the Tribunal may re-visit the question of whether the Application has a reasonable prospect of success, if appropriate;

f. In the event that the Application is not dismissed at that stage, the Tribunal will give further direction to the parties concerning the respondent’s case, including its disclosure obligations under Rules 16.2 and 17.