Lan v. Huawei Technologies Canada Co. Ltd., 2013 HRTO 1611

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wenfeng Lan

Applicant

-and-

Huawei Technologies Canada Co. Ltd.

Respondent

INTERIM DECISION

Adjudicator: Paul Aterman Date: September 25, 2013 Citation: 2013 HRTO 1611 Indexed as: Lan v. Huawei Technologies Canada Co. Ltd.

WRITTEN SUBMISSIONS

Wenfeng Lan, Applicant Self-represented

Huawei Technologies Canada Co. Ltd., Respondent Madeleine Loewenberg, Counsel

Introduction

1The applicant worked for the respondent as a Quality Operations Specialist from January 4, 2010 to February 21, 2013, when his employment was terminated. The respondent maintains that the applicant was terminated because of poor performance but the applicant maintains that his dismissal was discriminatory. He alleges that an officer of the respondent made derogatory remarks about his age and that the respondent took exception to the fact that he exercised his rights under the Employment Standards Act, 2000, S.O. 2000, c.41 (the “ESA”) to claim pay for overtime work. He claims that this led to his termination. The applicant filed an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of age. The Application also alleges reprisal.

2The respondent has made three Requests. One is to dismiss the allegations of age discrimination on the basis that the Application was filed more than one year after the last alleged incident. The second is to dismiss the allegations of reprisal on the basis that these relate to allegations of a breach of the ESA and not the Code. The third Request asserts that the applicant has raised a number of complaints about how he was treated by the respondent that do not engage the Code, such as denying him a transfer within the respondent’s organisation and denying him payment of a bonus after his termination. For the reasons set out below, the first and third Requests are denied, but the second Request is granted.

Request to Dismiss for Delay

3The Code (s. 34) requires an application to be made within a year of the last alleged incident of discrimination or, if a series of incidents is alleged, within a year of the last incident in the series. The Tribunal can make an exception to this rule if it is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

4This Application was filed on May 24, 2013. At issue is whether any allegedly discriminatory incident occurred after May 24, 2012, or within the one year period preceding the date on which the Application was filed. In filing the Application the applicant refers to a series of allegedly age-discriminatory comments which were made by an officer of the respondent on March 24, 2012. The fact that the applicant makes no reference to any later incident prompted the respondent to file the Request to dismiss for delay.

5In replying to the Request the applicant refers to three events subsequent to May 24, 2012, which were not originally referenced in his Application. He claims that on May 30 and June 28 of 2012 he raised the issue of age discrimination in conversations with another officer of the respondent, Anthony Schultz. He also claims that sometime in September of 2012 the same officer who is alleged to have initially made the discriminatory comments made some further age-discriminatory comments in a conversation with the applicant.

6For the purposes of deciding this Request to dismiss for delay, I am not making findings of fact about what actually occurred, I am simply assuming the truth of the allegations for the sole purpose of deciding whether the allegations are or are not out of time (see Pakarian v. Chen, 2010 HRTO 457 at para. 26). While the applicant made no mention of the events in May, June and September of 2012 in filing the Application, I am satisfied that he has now identified a series of incidents that, taken together, are sufficient to bring the Application within time.

7In Pakarian, at para. 25, the Tribunal defined a “series of incidents” as a number of events of the same class that occurred in succession. The Tribunal has also held that where a year separates one event from another in the series, then the chain of continuity that is necessary to establish a series is broken (see for example: Savage v. Toronto Transit Commission, 2010 HRTO 1360).

8In terms of their timing, the incidents referred to by the applicant are separated from one another by no more than three months. In terms of their character, all of the incidents allegedly entail conversations between the applicant and officers of the respondent about the applicant’s age. The incidents in March and September of 2012 are alleged to have consisted of age-discriminatory comments made to the applicant and the incidents of May and June appear to be instances of the applicant complaining to the respondent about the March, 2012 conversation. The applicant alleges that the respondent took no action in the face of those complaints. In light of their proximity in time and the similar nature of the alleged incidents, I am satisfied that these events constitute a “series of incidents” within the meaning of s.34(1)(b) of the Code, and thus this Request to dismiss for delay is denied.

Request to Dismiss Reprisal Allegation

9The applicant alleges that his unfair treatment and eventual dismissal by the respondent was triggered by two things: the respondent’s discriminatory attitude toward his age and a decision by the respondent to punish him for requesting payment for hours of overtime that he worked. The Application asserts that prior to dismissing him, the respondent imposed unrealistic performance expectations on him and evaluated his work in a manner that was unfair and arbitrary. The applicant attributes the alleged actions of reprisal to his attempt to enforce his rights under the ESA. Both in the narrative of the Application and in the complaint he filed under the ESA the applicant states: “My employment in Huawei was totally changed just because I exercised my basic ESA rights.”

10The respondent requests dismissal of the reprisal allegations on the ground that the Tribunal has no jurisdiction to deal with an alleged reprisal for a challenge to a violation of the ESA.

11In Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 23, the Tribunal set out the limits of its jurisdiction in relation to an allegation of reprisal as follows:

Reprisal under s. 8 of the Code must be a reprisal for the assertion of human rights and there must be an intention to reprise for that reason.

12The pleadings filed by the applicant, including his submissions in response to the Request to dismiss the reprisal allegation, do not identify any alleged acts of reprisal for the assertion of his Code rights. The applicant’s allegations of reprisal, if believed, might contravene the prohibition on reprisal set out at s.74(1) of the ESA. However this is a matter over which the Tribunal has no jurisdiction. For these reasons the Request to dismiss the allegation of reprisal is granted.

Request to Dismiss Complaints Unrelated to Protected Grounds

13The respondent has identified an alleged refusal to give the applicant an internal transfer, a refusal to pay him a bonus after his termination, and a refusal to allow him access to his Performance Improvement Plan and workplace computer following his termination as a series of complaints that are not protected by the Code. It requests that these be dismissed as beyond the Tribunal’s jurisdiction.

14The applicant is unrepresented and appears to have drafted his Application himself. I do not read the narrative regarding the above issues to constitute a series of independent allegations that either fall within or outside the jurisdiction of the Tribunal. Rather, the concerns he raises with respect to an internal transfer, payment of a bonus and access to his Performance Improvement Plan and workplace computer are simply allegations of fact regarding his relationship with the respondent. The truth of these alleged facts and their ultimate relevance to his claim of age discrimination are matters for the Tribunal to decide if and when this Application comes to hearing. For these reasons this Request is denied.

Order

15The Request to dismiss the allegation of age discrimination for delay is denied.

16The Request to dismiss the allegation of reprisal is granted.

17The Request to strike out alleged facts relating to an internal transfer, payment of a bonus and the applicant’s access to his Performance Improvement Plan and workplace computer is denied.

18As the parties have indicated a willingness to try to resolve this Application through mediation, the Registrar is requested to schedule a mediation session.