Costanza v. Cap-Thin Molds, 2014 HRTO 1542

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vito Costanza

Applicant

-and-

Cap-Thin Molds

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: October 16, 2014

Citation: 2014 HRTO 1542

Indexed as: Costanza v. Cap-Thin Molds

WRITTEN SUBMISSIONS

Vito Costanza, Applicant

Kyle Burgis, Counsel

Cap-Thin Molds, Respondent

André Nowakowski, Counsel

1This is an Application dated November 19, 2013, alleging discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The purpose of this Interim Decision is to address a Request for Order dated September 22, 2014, and filed by the respondent seeking dismissal of certain parts of the Application on the basis that they are unrelated to the Code, and in the alternative requesting particulars of certain allegations.

3The Application alleges discrimination in employment because of disability contrary to the Code on two bases: (1) the discontinuance of the applicant’s benefits while he was on medical leave; and (2) the alleged termination of the applicant’s employment when he sought to return from medical leave.

4The respondent states that paras. 5 to 7 of the Application contain allegations relating to the circumstances leading to the hiring of the applicant by the respondent, and in particular the allegation that the applicant was “enticed” away from his former employer by the respondent. The respondent submits that this allegation is not related to an alleged violation of the Code.

5The applicant states that paras. 5 to 7 provide a context for the Tribunal with respect to the initial interactions between the parties and the close temporal proximity in which these events occurred to the applicant’s disability. Specifically, the applicant states that being enticed away from a long-standing employment relationship by the respondent, and shortly thereafter being required to take a medical leave from the respondent’s workplace due to a disability due to workplace conduct are relevant to the respondent’s alleged breaches of the Code and should be considered by the Tribunal when determining the amount of damages to be awarded.

6In my view, there is much about paras. 5 to 7 of the Application that is unobjectionable and forms part of the background and context leading up to the events at issue. Paragraph 5 merely states that the applicant responded to a job advertisement. Paragraph 6 begins by stating that the applicant was contacted for a job interview, and includes relevant information about the compensation package offered to him. Paragraph 7 states that the applicant resigned from his former employment, and indicates the applicant’s start date with the respondent, his position, and that he was working under a written contract. All of this information is relevant and admissible at the hearing as background and context evidence.

7In my view, the problem with para. 6 of the Application is the allegation that the applicant was “enticed” by the respondent to leave his former employment. Further, para. 7 commences with the statement “given the representations provided by [the respondent]”, the applicant resigned his former employment. It is the allegation of enticement and reliance on the respondent’s representations that seem to me to constitute the basis for the respondent’s objection.

8I am well aware that in a wrongful dismissal action, an allegation of enticement and reliance on employer representations, if proven, can in certain circumstances lead to a larger award of reasonable notice damages. However, this Tribunal has no jurisdiction regarding the common law of wrongful dismissal. Further, this Tribunal’s remedial authority is not bound or limited by the determination of reasonable notice as in a wrongful dismissal action; rather, the purpose of the Code’s remedial provisions is to put the applicant in the position he would have been in but for the discrimination: see Piazza v. Airport Taxi Cab (Malton) Assn. (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.). In my view, in the context of a human rights proceeding, allegations of enticement and reliance on employer representations which are not alleged to constitute the basis of a Code violation are not relevant to either the issue of whether the Code was violated or to remedy.

9Having said that, I am not about to parse the Application and strike certain words or phrases. At the hearing of this matter, however, the Tribunal will not receive evidence from the parties regarding the alleged enticement of the applicant away from his former employment or whether the applicant relied upon representations made by the respondent in resigning from his former employment, as these matters are not relevant to the issues that arise under the Code.

10The respondent further objects to paras. 9 to 16 of the Application on the basis that, while the applicant alleges that he was subjected to workplace violence and verbal harassment, he does not allege that this conduct was related to disability or any other ground protected under the Code.

11The applicant states that these allegations are relevant in that the applicant’s disability was caused by the workplace violence and harassment that he experienced, as well as the respondent’s failure to address this conduct. The applicant also submits that these facts will have a bearing on any remedy to be awarded.

12I am aware from the material filed by the parties that the applicant’s allegations that he experienced mental and verbal abuse in the workplace formed the basis of a claim that he made under the Workplace Safety and Insurance Act (“WSIA”). Under that legislation, the cause of the disability, in terms of whether it arose from the workplace, and the nature of the conduct at issue when dealing with a claim of this nature are both relevant issues. This kind of conduct and any resulting disability may also, in appropriate circumstances form the basis for a civil action at common law. However, under the Code, the cause of a disability is not the issue, unless the conduct giving rise to the disability in itself is alleged to be conduct in violation of the Code. Here, no such allegation is made.

13Further, this Tribunal’s remedial authority is limited to providing compensation or restitution for “loss arising out of the infringement” of the Code or to promoting compliance with the Code, and does not extend to providing remedies for non-Code-related conduct. Accordingly, the applicant’s allegations that he experienced non-Code-related workplace violence and verbal harassment and that the respondent failed to properly respond to this conduct are not relevant either to the Code violations alleged in the Application or to any remedy that may be awarded.

14Accordingly, at the hearing in this matter, the Tribunal will not hear evidence regarding the allegations made by the applicant in paras. 9, 10, 11, 12 and 13 of the Application. With regard to para. 15, the Tribunal will hear evidence regarding the applicant’s medical treatment, symptoms and recommendations, but not about any workplace violence or harassment that is alleged to have continued during this period or whether the applicant’s disability was due to any such workplace violence and harassment. There is no issue with para. 16 of the Application.

15The applicant in his Response to the Request for Order raises the lack of timeliness of the respondent in raising its objection to these issues. While it may have been preferable for the respondent to have raised its concerns at any earlier stage, the delay in raising the issue does not make the allegations at issue any more relevant to the alleged Code violations. The applicant also raises the fact that the respondent previously had responded to these issues and provided disclosure relevant to these issues. Once again, this does not make the allegations at issue any more relevant.

16Given my determination, it is not necessary for me to address the respondent’s request for particulars.

ORDER

17For the foregoing reasons, I hereby make the following order:

a. At the hearing of this matter, the Tribunal will not receive evidence from the parties regarding the alleged enticement of the applicant away from his former employment or whether the applicant relied upon representations made by the respondent in resigning from his former employment; and

b. At the hearing in this matter, the Tribunal will not hear evidence regarding the allegations made by the applicant in paras. 9, 10, 11, 12 and 13 of the Application. With regard to para. 15, the Tribunal will hear evidence regarding the applicant’s medical treatment, symptoms and recommendations, but not about any workplace violence or harassment that is alleged to have continued during this period or whether the applicant’s disability was due to any such workplace violence and harassment.