Rankin v. Corporate Express Canada Inc., 2014 HRTO 394

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Neill Rankin

Applicant

-and-

Corporate Express Canada Inc. o/a Staples Canada

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: March 20, 2014

Citation: 2014 HRTO 394

Indexed As: Rankin v. Corporate Express Canada Inc.

APPEARANCES

Neill Rankin, Applicant

Self-represented

Corporate Express Canada Inc. o/a Staples Canada, Respondent

Laura K. Williams, Counsel

1This is an Application filed pursuant to section 34(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of age, record of offences and reprisal.

2In his Application, which was self-drafted, the applicant makes a number of allegations. The primary allegation is that the respondent failed to accommodate his age-related needs by in effect overworking him. The general allegation is that the respondent treated its drivers harshly knowing that older drivers had few options but to endure it. It is also alleged that this mistreatment resulted in him having to take a stress leave which was lengthened by the respondent’s agent, a third party which dealt with short term disability claims, into a month-long leave. The applicant also complains that on his return, he was targeted by the respondent in the apparent hope that he would quit.

3The respondent filed a Response in which it asserts that it did not discriminate against the applicant on the basis of age. The respondent argued that the applicant’s termination was unrelated in any way to the applicant’s age but was for multiple violations of company policy and insubordinate behaviour.

4In his Reply to the Response, the applicant added several new allegations which changed in an important way the nature of the Application. In particular, the applicant alleged, in response to the respondent’s assertions with respect to his dismissal, that he is a person with a hearing disability and that this affected his behaviour in the workplace, some of which the respondent relied on to support its decision to terminate his employment. The applicant also asserted that he had explained his hearing loss to management on several occasions.

5At the hearing the applicant alleged for the first time in response to my questions that he raised the issue of his age and the difficulties that he was having in coping with workload on two occasions – once in January 2013 when he spoke with Anthony Hurley, his manager, about his age-related difficulties with the work. The applicant alleges that he raised these issues a second time when he was being disciplined for failing to lock a vehicle in April 2013. Present at this second meeting were the respondent’s Director of Transportation and a representative of Human Resources.

6In a Case Assessment Direction issued on October 13, 2013, the Tribunal directed, on its own initiative, that a summary hearing be held to determine whether this 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.

7A summary hearing was held on March 13, 2014, by telephone conference call. All parties participated. For the reasons that follow, I have concluded that some but not all of this Application must be dismissed because elements of it have no reasonable prospect of success. Given this mixed result and in light of Rule 19A.5 of the Tribunal’s Rules of Procedure which provides that where a summary hearing is denied no reasons are required, I make the following rulings and comments.

8Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

9Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:

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.

10As was previously indicated, the applicant is self-represented and the Application was self-drafted. As originally framed, this Application would likely have been dismissed in its entirety because, as the respondent pointed out, there are virtually no facts plead in it that would support the applicant’s contention that he experienced discrimination in employment on the basis of his age. As the Tribunal has noted on many occasions, it does not have the general power to deal with allegations of unfairness. Much of what is plead in the Application appears to be alleged unfairness resulting in a medical leave for stress. Much of what is complained of in the Application and the Reply are complaints about unfairness, overwork and otherwise arbitrary and excessive demands placed on the applicant. These kinds of allegations, unless linked to one of the protected grounds in some way, do not engage the Code.

11Accordingly, the following general allegations of the applicant are dismissed. The applicant alleges discrimination in record of offences. There are no facts plead that would tend to support this allegation and it appears that what the applicant meant by selecting this ground is that he was unfairly disciplined because he was unable to comply with company directives because of his age. This is not what the ground of record of offences involves and accordingly, this allegation is dismissed.

12The applicant also alleges reprisal. He asserts that he was targeted when he returned from a medical leave. The reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s human rights. See Noble v. York University, 2010 HRTO 878 at para. 31. To proceed with the allegations of reprisal, there must be a reasonable basis to believe that the applicant can establish such intention and a link between the grounds cited and the respondent’s alleged actions. The only fact plead is that the drivers’ schedules were changed several weeks after he returned and then changed back shortly after he was dismissed. He also asserts that he was targeted for discipline after he returned from the leave, however, the documentary record establishes quite the opposite in that there is a substantial record of discipline prior to the applicant’s medical leave. In my view, there are insufficient facts plead that would tend to establish that the respondent intended any of these actions in response to a Code claim the applicant might have advanced.

13Although this is not clearly articulated in the material, the applicant appeared to suggest at the hearing that the respondent was hoping by its mistreatment of him to force him out so they would not have to deal with him any longer. As indicated above, there are no facts plead that would support this conclusion. What is plead are bald assertions and suppositions about the conduct of the respondent and its motivations. These aspects of the Application are dismissed.

14Similarly, the general allegations of unfairness, overwork, excessive and arbitrary demands made of the applicant, except to the extent they are related to an alleged failure to accommodate, are dismissed as having no reasonable prospect of success.

15However, in light of the applicant’s new allegations which reframe the Application, the following two general allegations of the applicant will require an evidentiary hearing to resolve.

16As regards the general allegation of age discrimination, as reframed by the applicant’s assertions at the summary hearing, the issue at the hearing will be whether or not the applicant ever made the respondent’s management aware of his age-related need for accommodations and whether, as alleged by the applicant, the respondent failed to respond to such request(s). I make two observations at this point. One is that these latter allegations, that the issues were raised with the respondent and that accommodations were requested, are somewhat unclear. Related to this observation is the respondent’s argument that despite an extensive narrative in the Application and a lengthy reply, these allegations do not appear in the material.

17The other issue raised primarily in the applicant’s Reply and confirmed at the summary hearing is that the respondent failed to accommodate the applicant’s hearing disability or, to put it more accurately, that the respondent knowing about the applicant’s hearing impairment and its effect on his behaviour relied on that behaviour in part at least to justify the applicant’s dismissal from employment. The applicant will be required to establish that the respondent was made aware of his condition and its consequences and failed to take his condition and its consequences into account when assessing his behaviour for discipline. I do observe, as was pointed out by the respondent, that there is an ample record of other discipline that might have justified the termination of the applicant’s employment in any event, but it seems to me that an evidentiary hearing will be required to resolve whether or not the applicant made the respondent aware of his condition and its consequences and whether the behaviour associated with the condition was a factor in the decision to terminate the applicant’s employment.

18The respondent did not argue that I could not consider these new allegations and, if it had, I would not have agreed with the submission. One of the purposes of the summary hearing process is to afford the applicant, particularly self-represented applicants, with a further opportunity to articulate their case in oral submissions. In this circumstance, I accept the applicant’s new allegations as an amendment to the Application by the addition of these new allegations and the new ground of disability discrimination.

19I also accept, for purposes of the summary hearing, that these new allegations are capable of being proved and therefore, I am not satisfied that the applicant has no reasonable prospect of establishing that he raised these concerns with the respondent and that they failed to appropriately respond to them.

20My conclusion that aspects of this case cannot be dismissed because they have no reasonable prospect of success does not imply the opposite; namely, that it is likely or reasonably possible that the Application will succeed. Rather, I have concluded that at this stage of the process, for the reasons set out above, the issues I have framed above will need to be resolved in an evidentiary hearing.

21In order to ensure the fair, just and expeditious adjudication of this Application, the Tribunal makes the following Directions:

a. The applicant will deliver and file full particulars of his claim that he raised with the respondent about his age-related need for accommodation. In these particulars, the applicant will describe the circumstances including who he told about his age-related need for accommodation, when he told them and what he told them about this issue.

b. Similarly, the applicant will deliver and file full particulars of his alleged hearing impairment and full particulars of his allegation that he raised this issue with respondent including who he told about his hearing impairment, when he told them and what he told them about this issue.

c. The applicant will provide this material referred to in paras. 21 a. and b. above within 21 days of the date of this Interim Decision.

d. The respondent will deliver and file an amended Response to the Application addressing the amended Application within 21 days of receiving the applicant’s particulars.

e. The parties have agreed to mediation. This Application will therefore proceed to the next stage of the Tribunal’s process.

22I am not seized.