Donald Osmun v. ING Engineering Inc. and Ian Glenn, 2014 HRTO 776

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donald Osmun

Applicant

-and-

ING Engineering Inc. and Ian Glenn

Respondents

INTERIM DECISION

Adjudicator: Paul Aterman

Date: June 2, 2014

Citation: 2014 HRTO 776

Indexed as: Osmun v. ING Engineering Inc.

APPEARANCES

Donald Osmun, Applicant

Melynda Layton, Counsel

ING Engineering Inc. and Ian Glenn, Respondents

Martin Thompson, Counsel

Introduction

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 with respect to employment because of age and family status. Reprisal is also alleged.

2Consideration of the Application was deferred to await the outcome of a claim made by the applicant under the Employment Standards Act, 2000, S.O. 2000, c.41 (the “ESA”). Following a preliminary hearing on May 29, 2014 by teleconference, this Interim Decision now deals with two requests. One is by the applicant to reactivate the Application and the second is a request by the respondents to dismiss the Application pursuant to s.45.1 of the Code following a decision of the Ontario Labour Relations Board (“OLRB”) on the ESA claim.

3As the proceedings which gave rise to the deferral have now been completed, there is no indication of any further proceedings pending and the request to reactivate was made within 60 days of the OLRB decision, the reactivation request is granted.

4In s. 45.1 the Code provides that the Tribunal “may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.”

5There are two issues to be determined here: whether the hearing before the OLRB constituted a proceeding within the meaning of s.45.1 and, if it did, whether the OLRB decision appropriately dealt with the substance of this Application.

6In relation to the first issue, given the authority and duty of the OLRB under s.116 of the ESA to hold a review hearing and given the institutional independence of the OLRB in adjudicating issues before it, I am satisfied that the hearing was a proceeding within the meaning of s.45.1. The second issue entails looking at what the Application alleges and comparing it to what the OLRB considered and decided in that proceeding.

what does the application allege?

7The applicant was hired by the corporate respondent on May 10, 2010 to work on the operation, promotion and sale of unmanned aerial vehicles (“UAVs”). A term of his employment was that he would relocate from Ontario to New Brunswick. While the corporate respondent was initially flexible about the timing of the move, it eventually set a deadline of November 1, 2010.

8When the applicant started work he had one young child at home and his wife gave birth to a second child a month later.

9Regarding the allegations of family status discrimination, the applicant says that he was required to work excessively long hours despite not being paid for overtime and that he was frequently and suddenly required to travel. He claims that he raised concerns about this, asserting that he needed to have a better work/family balance. He says that no effort was made by the respondent to accommodate these requests. As an example of this the applicant alleges the respondent required him to attend three weeks of training in Florida. He claims that the training ended early, yet the respondent refused to allow him to return home to care for his newborn son.

10The Application also appears to draw a link between the applicant’s allegation of the respondent’s refusal to accommodate his family status through different work arrangements and the delays that prevented him from getting his house in Ontario ready for sale in time to make the move to New Brunswick.

11On September 27, 2010 the applicant indicated to the respondent that he intended to take parental leave. He was terminated from employment three days later, on September 30. He alleges that as family status was a factor in the termination decision, it was also discriminatory.

12The allegation of age discrimination alleges the applicant was paid less than older colleagues who have less experience in the field of UAVs.

13The reprisal allegations are unclear. It seems that the applicant views some of the language used by the respondent about the applicant’s work performance and his attitude towards work in its pleadings as a reprisal for having filed this Application.

what did the olrb decide?

14Before the OLRB the applicant alleged that the termination of his employment was a reprisal by the respondents for having sought to exercise his rights under the ESA. He advanced two grounds in support of this claim. One was that the termination was a reprisal for having advanced a claim for overtime.

15In its April 26, 2013 decision the OLRB provided detailed reasons rejecting that allegation.

16The second ground was that the termination was a reprisal for having communicated his intention to take parental leave. The OLRB found that the applicant had no real intention to take parental leave, but it did conclude that his request for leave was a factor in the decision to terminate his employment. This amounted to a reprisal for the exercise of ESA rights. The OLRB said:

By mid-September there is no doubt that the Employer was losing patience with Osmun’s apparent reluctance to report to the work location he had agreed to by signing the offer of employment. Osmun had been issued a clear direction with a reporting deadline, but sought to discuss the matter further. In his testimony before me, Osmun sought to draw a distinction between indicating an inability to move his household to Fredericton for November 1st (which indication he clearly gave) and indicating that he would not himself report to work in Fredericton on November 1st. Osmun’s contemporary written communications to the Employer do not clearly make that distinction, and it is clear from the Employer’s written communications to him that they did not appreciate any such distinction. Glenn’s e-mail to his counsel on September 27, 2010 clearly raises the concern that Osmun is saying he will not report to work in Fredericton on November 1st.

I do not accept as accurate Glenn’s testimony that he had already decided to terminate Osmun’s employment prior to September 27, 2010, and that he had communicated his decision to Charles Vidal. The latter, as noted, did not address this issue in his testimony. I do think terminating Osmun was an option Glenn was considering, but the documentary evidence supports a finding that the decision had not yet been made: (1) he asked counsel what his options were; and (2) his initial denial of the parental leave request reiterated the direction that Osmun report to Fredericton on November 1, 2010. Glenn did not characterize Osmun’s communications to him prior to September 28, 2010 as an anticipatory breach of the employment contract’s obligation to work in Fredericton. Osmun’s last word to Glenn with respect to reporting to Fredericton was the September 22, 2010 e-mail. Between the time he sent that and the delivery of the termination letter to him on September 30, 2010, the only thing that changed was Osmun’s request for parental leave. In these circumstances I am unable to find that that request was not a factor in the Employer’s decision to terminate his employment. But for that request having been made, I think it likely the Employer would have either asked for a clear commitment from Osmun to report to Fredericton on November 1, 2010, or would have waited until then and treated his contract as at an end if he did not report.

analysis

17The Application before the Tribunal alleges discrimination on the basis of family status in two respects. The first is that, prior to terminating his employment, the respondents refused to accommodate the applicant’s need to parent his children by requiring him to work excessive hours and by refusing to extend him additional time to arrange his move to New Brunswick. The second is that when he asked for parental leave, the respondents refused that request and then terminated his employment.

18In my view the OLRB decision has appropriately dealt with the second aspect of the allegations of family status discrimination. The applicant and respondents were the only parties to the OLRB proceeding and were given full scope to present their respective positions. The OLRB considered oral and documentary evidence on why the applicant was terminated and provided a detailed analysis of its findings on this point.

19The applicant argues that the OLRB did not address the discrimination aspects of this allegation. As I understand this submission, it relies on the fact that the OLRB does not make explicit reference to human rights, discrimination or the Code in its reasons for decision. This argument prefers form over substance. In deciding whether s.45.1 applies, what matters is not whether specific language was used by the decision-maker in the other proceeding. Rather, the issue is whether the decision-maker dealt with the substance of the allegations of discrimination.

20In this case the OLRB concluded that, even though the applicant had no genuine intent to actually go on parental leave had his request been granted, his request for parental leave was nonetheless a factor in the decision to end his employment. On that basis the applicant succeeded before the OLRB. This is the same finding the applicant would have the Tribunal make in arguing the termination allegation in this Application. One effect of the gender-neutral right to parental leave provided by the ESA is to prevent discrimination on the basis of family status. Thus the OLRB decision supporting the applicant’s claim implicitly incorporates human rights considerations. The applicant cannot relitigate this issue in order to augment the compensation he has already received as a result of his success before the OLRB (see Edwards v. Heydary Hamilton Professional Corporation, 2012 HRTO 1864). For these reasons I conclude that the substance of the applicant’s allegation that his termination was discriminatory on the basis of family status has been appropriately dealt with in the OLRB proceeding.

21I do not agree with the respondents that the substance of the pre-termination allegations of discrimination on the basis of family status were also appropriately dealt with by the OLRB. As I understand the respondents’ argument, the OLRB finding that the applicant had no genuine intent to take a parental leave is a factual finding that in turn gives rise to an inference that if the applicant was not really serious about taking parental leave, then he was not really serious about obtaining any other form of family status accommodation either. There is nothing in the OLRB decision that supports that leap in logic. While the applicant may not have been genuine in requesting a leave from work in order to parent, it does not follow that any request to accommodate him at work was equally insincere.

22In any case, while the OLRB decision makes reference to pre-termination exchanges between the parties about hours of work and the timing of the applicant’s move, the OLRB decision does not examine whether the applicant actually sought accommodation of his working arrangements based on family status while still employed, whether any such request was considered and, if so, how it was dealt with.

23While the issue of compensation for overtime worked has been resolved (see the July 30, 2013 decision of the OLRB at para. 5), an issue which the Tribunal might yet determine is whether there is any entitlement to general damages in the event that the applicant can prove family status discrimination in the period before his termination. For these reasons I conclude that those allegations of family status discrimination unrelated to the request for parental leave can continue in the Tribunal’s process.

24As acknowledged by the respondents, the allegations of age discrimination were not considered at all by the OLRB. The allegations of reprisal for having filed this Application were also not considered by the OLRB. These allegations can also continue in the Tribunal’s process.

lack of particulars to support the applicant’s allegations

25In filing his Application the applicant provided almost no detail of the pre-termination allegations of family status discrimination. In the lengthy narrative setting out his allegations there is a single line in the second paragraph that touches on this issue. During the teleconference the respondents raised a concern about not knowing the allegations they have to defend against in an Application that was filed three years ago.

26In my view this is a valid concern that also applies to the allegations of reprisal.

27For these reasons the applicant is directed to provide particulars of these allegations to the respondents and the Tribunal in accordance with the deadline set out below. The applicant is to set out in writing each event that he maintains supports his allegation that he was discriminated against on the basis of family status and his allegation that he was the subject of reprisal. The applicant needs to provide a brief description of each event, specifiying when it took place, what happened and who was involved.

order

28The applicant’s request to reactivate the Application is granted.

29The respondent’s request to dismiss the Application is granted in part. The allegation that the applicant’s termination was discriminatory on the basis of family status is dismissed as the decision of the OLRB appropriately dealt with the substance of that allegation.

30The applicant’s remaining allegations of pre-termination family status discrimination, age discrimination and reprisal may proceed in the Tribunal’s process.

31The applicant is to provide particulars of the allegations of pre-termination family status discrimination and reprisal to the respondents and the Tribunal within 14 days of the date of this Interim Decision. These particulars must include a brief description of each event of the alleged discrimination relating to pre-termination family status discrimination and reprisal, including when the event took place, who was involved and what happened. If he fails to do so his Application may be declared abandoned.

32The Registrar is requested to set a date for hearing.