Howe v. Legacy Logistics, 2014 HRTO 953

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shawn Howe Applicant

-and-

Legacy Logistics Respondent

INTERIM DECISION

Adjudicator: Paul Aterman
Date: June 27, 2014
Citation: 2014 HRTO 953
Indexed as: Howe v. Legacy Logistics

APPEARANCES

Shawn Howe, Applicant
Douglas Allan, Counsel

Legacy Logistics, Respondent
Thomas Stefanik, Counsel

1This Application alleges discrimination with respect to employment because of disability and gender identity contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant works as a forklift operator for the respondent. He has been there for four years and is classified as a Temp-Agency worker. This means that he has the lowest rate of pay and the least security in terms of hours that he can work. Understandably, he wishes to move up to a higher level, with greater pay and more hours of work.

3The applicant has a skin condition, Alopecia Areata. This disability affects his appearance. He alleges that employees with less seniority and experience have been given full-time positions while he has been passed over. In September of 2013 a position for a full-time forklift operator was posted, along with other full-time positions. Some of the other positions were filled but staffing of the forklift operator position was put on hold. The applicant believes that he is the only employee who would have been qualified for the full-time forklift operator position and that his disability is a factor that has prevented him from obtaining this promotion.

4Because the Application indicates that the applicant believes discrimination was a factor in decisions relating to his employment yet makes no reference to evidence that would support this conclusion, the Tribunal directed that a summary hearing be held on June 27, 2014 to determine whether the Application has no reasonable prospect of success.

5Counsel for the applicant argued that when this Application was submitted the applicant was representing himself and failed to frame the issues correctly. He states that the applicant alleges that the respondent’s Human Resources staff have no control over decisions regarding promotion, that the person who made the decision regarding the posting of the forklift operator position has a history of making explicitly discriminatory statements about the race and disabilities of employees and that there is evidence linking that manager’s discriminatory inclinations to a decision not to promote the applicant. Counsel’s assertions regarding the alleged evidence of discrimination on the basis of disability were vague. In relation to alleged discrimination on the basis of gender identity, counsel could not articulate what is claimed to have happened, when or who was involved.

6Counsel for the respondent argued that the summary hearing should only consider the facts as pled in the Application and that a determination be made on that basis alone. The respondent has had no notice of the new alleged facts and argued that the summary hearing process is an academic exercise if parties can simply introduce new facts to avoid dismissal.

7While I appreciate the concerns expressed by the respondent, in order to promote access to its process the Tribunal does not take a restrictive and technical approach to how it treats pleadings in the early stages of the process. Although I find it surprising how little specificity counsel for the applicant could offer regarding what is alleged to have happened, it is not my role to weigh evidence at a summary hearing. The evidence is taken to have been proved for the purposes of determining whether an Application has no reasonable prospect of success.

8Here the evidence which is claimed to be available may be sufficient to support a finding of discrimination and for this reason the Application will not be dismissed at this stage.

9However, the applicant is directed to provide an amended Application which sets out in detail his allegations of discrimination. The amended Application is to identify each alleged incident of discrimination in detail, including which of the respondent’s employees are alleged to have been involved and specifically what those employees are alleged to have said and/or done.

10Counsel for the applicant indicated that he is now the representative of record. He is directed to provide his contact information to the Tribunal and the respondent when he files an amended Application.

order

11The Application will proceed in the Tribunal’s process.

12The applicant is directed to file an amended Application within ten days of the date of this Interim Decision in accordance with the directions set out above. If he fails to do so, the Tribunal may determine that he has abandoned his Application.

13Counsel for the applicant is directed to provide his contact information to the Tribunal and the respondent within ten days of the date of this Interim Decision.