Klumpenhouwer v. Lowe’s Companies Canada, ULC, 2013 HRTO 330

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kiem Klumpenhouwer

Applicant

-and-

Lowe’s Companies Canada, ULC

Respondent

INTERIM DECISION

Adjudicator: Alison Renton Date: February 26, 2013 Citation: 2013 HRTO 330 Indexed as: Klumpenhouwer v. Lowe’s Companies Canada, ULC

APPEARANCES

Kiem Klumpenhouwer, Applicant

Self-represented

Lowe’s Companies Canada, ULC and Mark Mollard, Respondents

Kristen Taylor, Blair McCreadie and Andy Pushalik, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race, colour and disability.

2The respondents filed a Response and a Request for Summary Hearing (“the Request”). In a Case Assessment Direction (“CAD”) dated June 22, 2012, the Tribunal granted the respondents’ Request and stated that a summary hearing (“the hearing”) would be scheduled to determine whether the 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.

3A hearing was held on October 23, 2012 and all parties participated. Prior to the hearing, the parties filed written materials with the Tribunal. During the hearing, the applicant advised that he had not received the respondents’ written materials as his email had been “hacked” into. The Tribunal directed the respondents to email their materials again to the applicant and gave the applicant an opportunity to provide any written submissions in response to the respondents’ written materials and the respondents an opportunity to reply to the applicant’s written materials. The applicant filed submissions on October 23, 2012 and the respondents filed reply submissions on October 31, 2012.

4A CAD dated December 19, 2012 was issued in which the Tribunal directed the parties’ attention to a Divisional Court decision in Weyerhaeuser Company Limited v. Ontario (Human Rights Commission), 2007 CanLII 65618 (“Weyerhaeuser”), provided the parties with a copy of the Decision, and invited the parties to file submissions addressing Weyerhaeuser. The applicant filed submissions on January 9, 2013 and the respondents filed submissions dated January 11, 2013.

5All of the materials that have been filed, including those filed subsequent to the hearing, as well as the submissions made during the hearing have been carefully reviewed and considered by the Tribunal.

THE PARTIES’ POSITIONS

6The applicant was a newly hired employee who was hired to work at one of the corporate respondent’s newly built stores. The applicant was attending training at one of the corporate respondent’s other retail locations. This store was located in a different city and required the applicant and other employees who were being trained to stay overnight for some period in a hotel. The hotel and accommodation costs were paid for by the corporate respondent and the employees were required to share hotel rooms with another employee.

7During the evening of Wednesday, November 8, 2011, the applicant’s roommate requested to change rooms after he came into their room and smelled marijuana. The roommate changed hotel rooms. The next day when the applicant arrived at work, he was told that his employment was terminated effective immediately and no reasons were given for his termination. The applicant was not asked any questions about either his roommate changing rooms or his marijuana usage. Subsequent to the termination, the applicant alleges that Mark Mollard (“Mollard”) told him that it was a business decision to terminate him.

8The applicant admits in his Application that he smoked marijuana the evening that his roommate changed hotel rooms, but that he did not smoke it on the corporate respondent’s property, on company time, in the hotel room or on hotel property. He alleges that he is has been smoking marijuana for approximately 30 years and that he is addicted to marijuana. He did not file any medical documentation in support of his addiction, but stated during the hearing that he would be obtaining such documentation from his doctor. In his materials filed prior to the hearing he also identified sources of medical evidence that he planned to call including his doctor and information from a study about high level, long-term marijuana users in which he had participated. He filed the first page of a complaint he filed with the Ontario Human Rights Commission (the “Commission”) in 2004 with another employer in which he alleged that he was discriminated against on the basis of disability for failing a pre-employment drug test. During the hearing, the applicant stated that he was not pursuing the grounds of race and colour.

9The respondents submit that the applicant was terminated for performance issues which had nothing to do with his smoking marijuana on November 8, 2011. Instead, the applicant showed himself to have the “makings of a problem employee”. He expressed his dissatisfaction with some of the corporate respondent’s policies, including its scheduling practices, and addressed Mollard in a sarcastic manner. The respondents submit that the applicant never advised the respondents prior to or during his employment that he had a disability or required accommodation, and he did not provide any medical documentation substantiating that he has a disability. The corporate respondent did not perceive that the applicant had a disability. The respondents knew before the applicant’s termination about the roommate’s request to change room because he detected the odour of marijuana, but the respondents did not ask the applicant about this and the applicant did not raise the issue with them before his termination. The respondents did not know about the alleged disability until the applicant filed his Application. Subsequent to his termination, the applicant wrote to the respondents and made allegations which the respondents characterize as being in “bad faith”. The respondents further submit that Mollard should be removed as a respondent as there are no prima facie allegations against him that would support a violation of the Code and that the corporate respondent accepts liability for his actions, which were conducted within the scope of his employment.

10In his materials filed after the CAD, and during the hearing, the applicant provided some explanations for some of his performance issues, including admitting that he challenged the corporate respondent’s prohibition against smoking on the corporate respondent’s premises because he is a smoker and is addicted to smoking. He confirmed that he was not relying upon his smoking addiction as a disability in this Application. He also explained that he challenged the change in the training schedule, which was supposed to be from Monday to Friday, with him going home on the weekend, to a schedule which included being away from home on a weekend because he had scheduled plans with his family.

11The applicant opposes the respondents’ request to have Mollard removed as a respondent. He asserts that Mollard was the one who made the decision to terminate him, spoke with the applicant’s roommate about why he wanted to change rooms, and to whom the applicant voiced his disagreement about the corporate respondent’s policies.

LAW AND ANALYSIS

Reasonable Prospect Of Success

12Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

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.

13In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments 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.

14In determining whether an Application has no reasonable prospect of success, an Application must at least contain sufficient facts that, if accepted as true, could reasonably lead to a finding of discrimination. Otherwise, an Application has no reasonable prospect of success at a hearing and will be dismissed. See Macyshyn v. Toronto Catholic District School Board, 2011 HRTO 1068.

15The applicant confirmed during the hearing that he was now only relying on the prohibited ground of disability as the basis of his Application. As such, the grounds of race and colour are dismissed as are any allegations pertaining to them. “Disability” is defined in section 10(1) of the Code and “perceived disability” can also fall within the definition of disability for the purposes of the Code. See McLean v. DY 4 Systems, 2010 HRTO 1107 at para. 51.

16In Weyerhaeuser, the complainant, Alan Chornyj, applied for a safety sensitive position with the employer and was given an offer of employment conditional upon a number of requirements including passing a drug test. He tested positive for marijuana and was subsequently asked by the employer if he smoked marijuana. According to Mr. Chornyj, he admitted to being an occasional user, but did not claim to suffer from substance abuse or have a disability. According to the employer, Mr. Chornyj repeatedly denied using it, but then changed his story and admitted to using it. The offer of employment was withdrawn, with the employer taking the position that it was because of Mr. Chornyj’s dishonesty and not because of his positive drug test.

17Mr. Chornyj filed a complaint under the Code, as it then was, to the Commission. The Commission decided to refer the complaint to the Tribunal as it was then constituted. The Tribunal issued an interim decision holding that it had jurisdiction over the subject matter of the complaint and that it could review the employer’s policy of pre-employment drug testing for safety sensitive positions. The employer sought judicial review of the interim decision and an order of prohibition from Divisional Court preventing the then constituted Tribunal from hearing the complaint.

18The employer’s application for judicial review was upheld and an order of prohibition preventing the Tribunal from hearing the complaint was issued by the court. At para. 22, Divisional Court held:

Chornyj did not claim that he abused marijuana, nor did he claim he used marijuana because he suffered from an existing disability. The only evidence before the Tribunal was that Chornyj claimed to be a recreational user of marijuana. Therefore it would be inconsistent for Chornyj to claim he was discriminated against on the ground of actual disability. In my opinion, the Tribunal erred in law by failing to dismiss this aspect of Chronyj’s complaint, as it does not fit within the definition of “disability” under s. 10 of the Code.

19The Divisional Court then turned to the issue of “perceived disability” and whether the complainant was discriminated on that basis. At para. 28, it held:

First, the evidence does not support a conclusion that Weyerhaeuser actually perceived Chornyj as being disabled. Chornyj did not allege that anyone at Weyerhaeuser perceived him to be disabled. All of the evidence of Weyerhaeuser’s representatives indicates that they did not perceive Chornyj as having a disability, but rather they perceived him to be dishonest.

20The difference between the fact situation before me and Weyerhaeuser is that the applicant is alleging that he is addicted to marijuana and is accordingly disabled whereas Mr. Chornyj did not allege that he was addicted. Further, in Weyerhaeuser, the Tribunal heard evidence from the employer’s witnesses with respect to the perceived disability issue, whereas no evidence has been tendered in this Application.

21While I understand the respondents’ position that it did not discriminate against the applicant because of disability or perceived disability as his termination was based upon performance issues, I note that the applicant has provided explanations for some of the performance issues, as outlined above in para. 10. Further, I note that the applicant’s termination was the day after his roommate changed hotel rooms, about which the respondents knew, as well as the reason for the change in rooms. Given the timing of the termination in relation to the room change and the reason for the hotel room change, it is reasonable to draw an inference, at this stage, that the applicant’s termination was in part because of his disability or perceived disability. Accordingly, I am not satisfied that the Application has no reasonable prospect of success and it can continue to proceed.

22Finding that the Application can continue to proceed does not, obviously, mean that the Application will be successful at hearing. The applicant is reminded that he bears the onus of proving that he has a disability within the meaning of the Code. In the circumstances of this case, and given his representations during the hearing that he will provide medical documentation to establish his disability, the Tribunal would expect that medical documentation and/or medical evidence would be submitted by the applicant and failure to provide this documentation and/or evidence may result in his Application being dismissed. Finally, the applicant is reminded that even with this documentation and/or evidence, he bears the onus of proving that he was discriminated against because of disability or his Application will be dismissed.

Removing the personal respondent

23Rule 1.7(b) of the Tribunal’s Rules of Procedure provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, at para. 42, the Tribunal set out the general principles that apply to this issue:

The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

24The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31, at para. 5:

Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?

Is there any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

Would any prejudice be caused to any party as a result of removing the personal respondent?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

25The applicant alleges that he was fired by Mollard, who had knowledge of the reason for the roommate’s request to change rooms, and to whom the applicant had challenged some of the corporate respondent’s policies. The corporate respondent submits that it is not raising any issue as to its deemed or vicarious liability for any actions taken by Mollard in his role as store manager and in fact that he acted within the scope of his employment.

26In the circumstances of this case, there are no allegations of harassment against Mollard and there is no issue with respect to the vicarious liability of the corporate respondent in the event that the Application is successful. Accordingly, I find it appropriate to remove Mollard as a personal respondent and the style of cause is amended accordingly.

ORDER AND DIRECTIONS

27As the parties have agreed to participate in mediation, the Tribunal will schedule this matter for a half-day mediation.

28The Tribunal orders that:

i. The Request for summary hearing is dismissed;

ii. The personal respondent, Mollard, is removed and the style of cause is amended accordingly; and

iii. The applicant is directed to file copies of his medical documentation with the Tribunal and the respondents at least ten (10) business days prior to the mediation.