Ali v. Integrated Distribution Systems Limited Partnership, 2013 HRTO 550

Human Rights Tribunal of Ontario

B E T W E E N:

Harold Ali

Applicant

-and-

Integrated Distribution Systems Limited Partnership and Scott Dominick

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: April 4, 2013

Citation: 2013 HRTO 550

Indexed as: Ali v. Integrated Distribution Systems Limited Partnership

APPEARANCES

Harold Ali, Applicant

Self-represented

Integrated Distribution Systems Limited Partnership and Scott Dominick, Respondents

Christopher M. Little, Counsel

Introduction

1This is 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 race, colour, ethnic origin and disability.

2A Response was filed and the parties participated in mediation. The Application was not resolved. Following mediation, the Tribunal scheduled a summary hearing on its own initiative for the purpose of determining whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed.

3The parties filed submissions in advance of and during the summary hearing. In addition, the applicant filed further documents after the summary hearing and the respondents filed submissions in response.

4For reasons that follow, I find that with one exception, the allegations in the Application will continue to be processed by the Tribunal.

BACKGROUND

5The Application arises out of the applicant’s employment as a lift truck mechanic with the corporate respondent. The individual respondent was the applicant’s supervisor and the service manager at the time of the events in the Application.

6The applicant was employed by the corporate respondent from August 3, 1999 to January 31, 2011. The allegations in the Application relate to the period January 2010 to January 31, 2011. In essence, the applicant alleges that after the individual respondent became the service manager, he was subjected to unfair treatment based on his race and related grounds (the applicant self identifies as a “Black person from Trinidad”) and disability.

7In the Application, the applicant alleges that he was placed in a lower classification and his rate of pay was frozen (stating that he was the only employee affected); that he complained about his treatment and then received two negative letters about his performance on July 19 and 29, 2010 (the latter of which was ultimately rescinded); that he suffered a head injury while at work and was subsequently harassed while off work recovering; that he was denied training and assistance to improve his performance; that he was denied the necessary accommodation or modified work during the recovery period of his head injury; and was fired.

8In the Application, the applicant states that he was discriminated against on the basis of race and related grounds because he had great reviews about his work until the individual respondent became his service manager. The applicant alleges that he was discriminated on the basis of disability because after his head injury, the service manager never took his injury into consideration and continued to pressure him with letters.

9Apart from the service manager, the applicant also alleges that in January 2011, another supervisor started to harass him reciting an incident that after he was given safety glasses from another employee, the supervisor called him a thief repeatedly and when the applicant asked him what happened to safety, the supervisor replied that there is “no F…in safety here”.

10In the applicant’s submissions before and at the summary hearing the applicant elaborated on his allegations by providing a more detailed statement of particulars of the allegations and supporting documentation. In addition, the applicant outlined what he views as the link between the grounds relied on and the allegations.

11With respect to race and related grounds, the applicant states that the individual respondent did not like him because he knew that the applicant was “pro union” based on his speaking out in a meeting for “equality for visible minority” in October 2009 and that it was following this meeting that the applicant was targeted by the respondents. The applicant also states that the individual respondent would not communicate with him which he submits is linked to race. The applicant also links his allegation regarding the other supervisor to race stating that by the supervisor calling him a thief, it must be because he is a “visible man” as he has never heard him refer to anyone else in this manner.

12With respect to disability, the applicant relies on the allegations made and submits that the individual respondent was aware that he was still experiencing dizziness and headaches and receiving treatment for his head injury at the time he was terminated. The applicant states that his head injury was affecting his ability to do his job.

13The respondents dispute the allegations in the Response and in their submissions during the summary hearing. Among other things, the respondents argue that the applicant should not be allowed to supplement his pleading with the additional particulars and that the additional submissions made before and during the summary hearing should be disregarded. Based on the submissions made, it appears the primary concern of the respondent relates to the applicant’s elaboration of the link between race and related grounds and the alleged conduct. In this respect, in the original Application, the applicant had linked the commencement of his difficulties with it becoming known he was “pro-union” which he elaborated on in the summary hearing process to include the more detailed reference to his speaking out at the meeting for equality.

14On the substance of the allegations, it is apparent that the respondents rely on an entirely different version of events including that they had legitimate concerns about the applicant’s performance, suspended any performance management during the period of the applicant’s recovery and only reinstituted it once the applicant had returned to regular duties in the month before he was terminated.

15While I have carefully considered the respondents’ submissions as to the scope of the Application, I find it is appropriate to consider the applicant’s submissions made before and during the summary hearing.

16The summary hearing process is intended to dismiss only those applications that have no reasonable prospect of success if they were to proceed to a hearing on the merits. It is not intended to dismiss applications on the basis of deficiencies in the pleadings. In fact, one of the central purposes of the summary hearing process is to afford the applicant an opportunity to point to evidence on which he intends to establish a link between the disadvantageous treatment complained of in the application and a prohibited ground of discrimination under the Code: Dabic v. Windsor Police Service, 2010 HRTO 1994. While this Application is at a somewhat more advanced stage than some applications assessed for summary hearing, I view the additional particulars as falling within the proper scope of allegations to be considered in determining whether the Application should be dismissed as having no reasonable prospect of success. As such I have considered the applicant’s additional particulars and elaboration of the link between the treatment complained of and race. However, to ensure that the respondent has a full opportunity to respond to the same, I issue directions below permitting the respondents to file an amended response.

17In assessing the allegations, I find that there is no reasonable prospect that the applicant will be able to establish that he was discriminated against based on race and related grounds by the supervisor’s comments in calling him a thief and swearing in the manner indicated set out in paragraph 9 above. This is the only allegation as against this supervisor and the applicant has not provided any particulars or pointed to any evidence of a link between this supervisor’s conduct and his race and related grounds beyond the assertion that the supervisor has not referred to anyone else in this manner.

18Apart from this allegation, it is apparent that there are factual disputes between the parties about the remaining allegations. At this stage, it is not appropriate to make any factual or legal findings with respect to these allegations. Suffice to say, having heard and considered the allegations, I am unable to conclude that these allegations have no reasonable prospect of success.

19As a result, the allegation that the supervisor called the applicant a thief repeatedly and swore at him is dismissed as having no reasonable prospect of success. The remaining allegations in the Application will continue to be processed.

20The Tribunal directs:

• The Application will continue to be processed;

• The Application will be scheduled for two days of hearing; and

• The respondents may file an amended response responding to the applicant’s allegations as set out in the applicant’s seven page statement dated June 22, 2012 within 14 days of the date of this Interim Decision.

21Apart from the above directions, the Registrar will provide the parties with their Rules 16 and 17 obligations in the Notice of Confirmation of Hearing.