HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jude Fernandez
Applicant
-and-
Vito Tomas
Respondent
DECISION
Adjudicator: Kathleen Martin
Indexed as: Fernandes v. Tomas
APPEARANCES
Jude Fernandez, Applicant
Self-represented
Vito Tomas, Respondent
Gerald Griffiths, Counsel
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 in employment on the basis of perceived disability.
2The applicant is a transit operator employed by MiWay, i.e. Mississauga Transit. The applicant alleges that he was discriminated against on the basis of a perceived disability when an operations manager made certain comments to him about his use of washroom facilities during the investigation of a customer complaint. The applicant states that he does not have a disability but that the comments humiliated and embarrassed him and were based on a view that he had a disability.
3The respondent denies that the applicant’s claim engages the Code and submits that the comments that were made were consistent with a manager’s responsibilities under the Code.
4A hearing was held on August 26, 2014. Prior to commencing the evidence, the applicant clarified that he was no longer relying on reprisal (a factual allegation and ground originally identified in the Application) and was no longer alleging harassment. In summarizing the evidence below, in light of the applicant’s position, I have omitted those aspects of the evidence which were related specifically to the reprisal allegation.
5I have determined that the applicant has not established that he was discriminated against on the basis of perceived or presumed disability. My reasons follow.
Evidence and Findings
6Most of the narrative of events was not in dispute and I accept the following summary with the exception of the contested evidence related to the comments in the meeting. In respect of that evidence, I set out the competing versions of the two witnesses and indicate my factual findings below.
7In resolving the differences in the respective evidence of the parties, I have been guided by the test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 and in particular whether the evidence is “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and those conditions….”.
Background
8The applicant has been employed by MiWay or its predecessor for eleven years. The respondent is also a long service employee having been employed by MiWay or its predecessor for 30 years. Prior to assuming the role of operations manager in 2009, the respondent was active in the union in the workplace, most recently as president from 2002 to 2008.
9The Application arises from the investigation of a customer complaint.
10On July 25, 2013, the applicant was driving a bus on Route 35, a route that extends from the west to east end of the city. At the time, there was construction on the route and a detour. The applicant stopped twice to use washroom facilities en route – once at the Islington subway and again at a McDonald’s located in the west end near a bus stop on Winston Churchill Road. As a result of the construction coupled with his stops to use the washroom facilities, the applicant departed the scheduled bus stops later than the scheduled times.
11A customer filed a complaint about the delay at the west end of the applicant’s route. In the complaint, the customer stated that when the bus stopped at McDonald’s, the customer asked to be taken to the next scheduled bus stop and the applicant said he would not do that because he needed to use the washroom. When the customer advised that he was already late, the customer reported that the applicant responded in a manner which he alleged was rude. The washroom stop used by the applicant is a designated stop for a driver to use a washroom.
The Investigation of the Complaint and Alleged Discrimination
12The complaint was directed to the respondent to investigate. In accordance with usual procedure, the respondent investigated by retrieving data about the route and meeting with the applicant on July 30, 2013 along with his union steward.
13I heard accounts from the applicant and respondent about the meeting.
14The applicant states that during the meeting he was told that MiWay had received a complaint about delay on the route and asked why he was late, which he explained referencing construction and his use of washroom twice. After he referred to the fact that he used the washroom a second time, the applicant states that the respondent said “again”. The applicant states that the respondent told him that he was using the washroom too many times and that he was attracting complaints to which the applicant responded that if he has to go, he has to go. The applicant states that the respondent told him that “something must be wrong with you” and that “you need to see a doctor” and then repeated it. The applicant states that he was angry and upset by these comments and the applicant stated that this meeting is over and that he would be going to see a lawyer. The applicant acknowledges that his voice was raised.
15The applicant states that he was being treated like a child and that the respondent had “no right” to ask him questions about his medical conditions. However when specifically asked during cross-examination about whether he had any “health related problem” that required him to use the bathroom the applicant denied that he did.
16In his own written account of the meeting on July 30, 2013, the applicant described the respondent as telling him that he was using the washroom too many times and delaying service and that “maybe” something is wrong with him and he should see a doctor.
17The respondent’s evidence was generally consistent about the content of the meeting with the exception of the statements about the use of the washroom and going to the doctor. The respondent states that when the applicant told him he went to the washroom the first time, he said “no problem” and when the applicant mentioned the second time, he said “ok” but then did ask the applicant if he had “a problem” albeit only once. The respondent states that this led to the applicant getting up, going to the door and saying he was going to his lawyer. The respondent states that the meeting lasted four minutes (an estimate that was unchallenged by the applicant and documented in the respondent’s notes).
18After the applicant left the meeting, he booked off work saying he was not feeling well. The applicant went to see his doctor who advised that he should take three days off which he did.
19I do not find that I need to resolve each difference between the parties’ account of the meeting. I accept that the respondent expressed concern about the applicant’s use of a washroom on a second occasion on the route in question and the resulting issue of delay on his scheduled route. In the circumstances, it makes sense that a concern was expressed (given the applicant’s reaction which both witnesses commented on) and that the concern was related to the issue being discussed – namely, a customer complaint that was in part based on the delay of the bus.
20However, in terms of what was said after that concern was expressed and more particularly, how it was framed, I prefer the respondent’s evidence, i.e. that he posed a question to the applicant of whether he had “a problem” which I infer meant a health- related problem and not that he told the applicant that something is wrong with him. This is consistent with the applicant’s other evidence in the hearing (that he believed that the respondent had “no right” to “ask” him questions) and the applicant’s written version of what happened at the time (that the respondent stated that “maybe” something is wrong with him and he should see a doctor). Further, the respondent’s evidence on this point was unchallenged in cross-examination.
Other Evidence
21As a result of the meeting and the alleged comments, the applicant filed a grievance, a complaint with Human Resources and the Application. The grievance was not pursued. The internal complaint concluded that the applicant’s claim that the respondent violated his human rights by suggesting that he used the washroom too many times causing delay in service could not be substantiated.
22The applicant was not disciplined for either the customer’s complaint or his conduct in walking out of the meeting when it upset him. On August 15, 2013, the transit director issued a memo to staff assuring employees that no employee has or will be disciplined for using the washroom.
Analysis and Decision
23The relevant provisions of the Code provide as follows:
(1) Every person has a right to equal treatment with respect to employment without discrimination because of …disability.
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part. R.S.O. 1990, c. H.19, s. 9.
…
(3) The right to equal treatment without discrimination because of disability includes the right to equal treatment without discrimination because a person has or has had a disability or is believed to have or to have had a disability. 2001, c. 32, s. 27 (4).
24The applicant bears the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred.
25In order to establish discrimination in this case, the applicant must prove that (1) he had, or was perceived to have, a disability; (2) he received adverse treatment; and (3) a disability or a perceived disability was a factor in the adverse treatment. See Shaw v. Phipps, 2010 ONSC 3884 at para. 47, upheld 2012 ONCA 155.
26In this case, the applicant submits that he was discriminated against on the basis of presumed disability because the respondent presumed that something was “wrong” with him and took the liberty of telling him to see a doctor in the presence of a shop steward which embarrassed him and hurt his dignity and self-esteem. The applicant submits that this conduct disadvantaged him because he now uses the washroom less frequently.
27In his final submissions, the applicant also submitted that his doctor advised him to drink a lot of water because of a medical condition which was referenced in his submissions. The applicant did not link this condition to his use of the washroom on the day in question in his submissions. In addition and more significantly, the applicant did not present evidence on this point and in fact, there was express evidence to the contrary (for example, see para. 15 above). In these circumstances, I have not had regard to this submission and have based my conclusions on the evidence heard in the hearing.
28I accept that the applicant was genuinely upset by his interaction with the respondent. I can appreciate that the applicant felt that he was being questioned about a personal need which he perceived as a form of admonishment and that to the extent the respondent did suggest he see a doctor, he felt that it was inappropriate for the respondent to do so. However, the Tribunal’s jurisdiction is not to assess the fairness of conduct and comments generally, but to determine whether or not there has been a breach of the Code. Based on the context of the meeting and my findings, I am not convinced that the applicant experienced adverse treatment based on a perceived or presumed disability.
29There was no dispute that the context of the meeting was the investigation of a customer complaint which was based in part on the delay in the scheduled route. In this context, it seems reasonable that the respondent would ask the applicant questions about the delay and the applicant’s explanation. In the course of the four minute meeting, I accept that the respondent raised a concern about the applicant’s use of the washroom on a second occasion on a single run and then posed the question of whether the applicant had a “problem” either once or twice. While there was no evidence from the respondent that he suggested the applicant see a doctor, even assuming that he did, I have difficulty seeing the import of the foregoing remarks as discriminatory based on disability or perceived disability.
30There was no evidence that the respondent believed that the applicant had a disability. Indeed the evidence was to the contrary insofar as the respondent specifically stated that he did not think that the applicant had a disability, evidence which was unchallenged. Further there is no evidence before me that the applicant has or has had a disability.
31Further, I am not convinced that the applicant experienced adverse or disadvantageous treatment or if he did that it was in part because of a perceived disability. There was no suggestion that this was a disciplinary meeting or that the incident in the meeting led to any discipline. While remarks and comments can be adverse or disadvantageous treatment, I am not convinced that the remarks in this case qualify as such.
32Depending on the circumstances, a respondent employer is required to make inquiries about whether an employee has disability-related needs as they may relate to an employee’s duties and responsibilities in order to meet an employer’s obligation to accommodate under the Code. To the extent the respondent posed the question of whether the applicant had a “problem” and referenced seeing a doctor, I agree with the respondent that these remarks are arguably consistent with an employer’s obligations, albeit the queries were not posed in the most sensitive manner. Nonetheless I do not find that the import of the comments were to subject the applicant to disadvantageous or adverse treatment on the basis of a perceived or presumed disability.
33For all of the above reasons, the Application is dismissed.
Dated at Toronto, this 29^th^ day of September, 2014.
“Signed by”
Kathleen Martin
Vice-chair