Hulbert v. Cott Beverages, 2014 HRTO 1167

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Thomas Hulbert

Applicant

-and-

Cott Beverages

Respondent

DECISION

Adjudicator: Jo-Anne Pickel

Date: August 7, 2014

Citation: 2014 HRTO 1167

Indexed as: Hulbert v. Cott Beverages

APPEARANCES

Thomas Hulbert, Applicant

Self-represented

Cott Beverages, Respondent

Julie O’Donnell, Counsel

Teamsters Local 938, Affected Party

John Gorman, Representative

Introduction

1By Application filed April 2, 2013, the applicant alleged that the respondent discriminated against him contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). Specifically, he alleged that the respondent discriminated against him because of record of offences and association with a person identified by a ground protected under the Code.

2By Case Assessment Direction (“CAD”) dated May 15, 2014, the Tribunal, on its own initiative, directed that a summary hearing be held to address the following issues: (1) whether the Application should be dismissed as untimely and (2) whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.

3For the reasons that follow, I find that the Application must be dismissed on the basis that it has no reasonable prospect of success under the Code.

Summary Hearing Process

4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

5The Tribunal cannot address allegations of unfairness or of general harassment that is unrelated to the Code. Many experiences of unfairness, which are not defined as discrimination in the legal sense, can leave a person with significant financial and emotional damage. However, the Tribunal’s jurisdiction is limited to claims of discrimination under the Code. Discrimination under the Code generally involves an allegation of unfair treatment because of one or more of the grounds listed in the Code. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of the personal characteristics listed in the Code were a factor in the treatment the applicant experienced.

6The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary.

7However, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine applicant is able to point to any information which tends to support his or her belief that he or she has experienced discrimination under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence available to connect the unfair treatment allegedly experienced by the applicant with a ground protected under the Code.

8As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 (“Forde”), for an Application to continue in the Tribunal’s process following a summary hearing, 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.

9Having set out the basic framework for determining whether an application should be dismissed in whole or in part because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Factual Background

10In his Application, the applicant described an incident that occurred in his workplace on September 11, 2007. He claimed that some of his co-workers insulted him and made verbal threats against him. The applicant ended up throwing his tea on the ground. The applicant claimed one of his co-workers then charged at him with clenched fists looking for a fight. The applicant got in his car and stayed in it for over two hours. He claimed he did not go into work for his shift because he was so upset. The applicant stated that he tried to speak to the respondent’s Human Resources department but they were not responsive. According to the applicant, the Human Resources representative avoided his calls. The applicant alleged that the respondent called the police about the incident without hearing his side of the story. The police laid charges against the applicant but the charges were eventually dropped.

11In his Application, the applicant also outlined additional allegations about the respondent not informing him of emergency family-related calls, harassment by his co-workers and alleged harassment with respect to wearing a hair net. In the summary hearing, he stated that these incidents took place in the 1990s and in 2004/2005 respectively.

12Following the incident in 2007, the applicant went on Short Term Disability and Long Term Disability leaves. The respondent terminated the applicant’s employment on April 4, 2012. The applicant filed a grievance with his union. According to the union, the respondent provided the applicant with a severance payment but the applicant did not agree to sign a full and final release. By letter dated April 30, 2013, the union advised that, upon a full review of his case, it would not be pursuing the grievance filed by the applicant.

Findings

13In my view, the Application is untimely as it was filed over five years after the last alleged incident of discrimination set out in the Application. However, even if I were to accept the applicant’s reasons for the delay in filing his Application, I must find that his Application has no reasonable of success under the Code.

14I understand that the applicant believes that the respondent did not treat him fairly and that it did not have good reasons to terminate his employment. However, even if I accept the applicant’s allegations as true and provable, he has provided no information that can establish a link to the grounds of discrimination set out in his Application or any other ground protected under the Code.

15The ground of record of offences is widely misunderstood by individuals who have little familiarity with the Code. The ground of “record of offences” does not simply refer to a history of incidents for which a person was disciplined or charged with an offence. The ground of record of offences is defined in s. 10 of the Code to mean:

a conviction for,

(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or

(b) an offence in respect of any provincial enactment.

16The applicant confirmed that he has never been convicted of either a federal or a provincial offence, whether in relation to the 2007 incident contained in the Application or any other incident. Therefore, there is no reasonable prospect that he will be able to establish that any actions taken by the respondent amount to discrimination based on record of offences.

17When asked to clarify in the summary hearing, why he alleged that he was discriminated against because of association with a person identified by a Code ground, the applicant said that he believed that the respondent discriminated against him due to the altercation that occurred between him and a co-worker in 2007. The applicant provided no information that would link this incident to any Code ground that applied to him or a person with whom he associated. Therefore, there is no reasonable prospect that the applicant will be able to establish a link between any of the respondent’s alleged actions and this ground of discrimination.

18The applicant provided no information that would establish a link between any of the respondent’s actions and any other Code ground.

19I understand that the applicant believes that the respondent did not have good reasons for his termination and that he believes that his termination may have been linked to the incident in 2007. However, this in itself, does not bring his Application within this Tribunal’s jurisdiction. Absent some information that has a reasonable prospect of establishing a link to a ground protected under the Code, the Application must be dismissed as having no reasonable prospect of success under the Code.

Order

20For the above reasons, the Application is dismissed.