Mark Ljuboja v. The Aim Group Inc. and General Motors of Canada Limited, 2014 HRTO 976

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Ljuboja

Applicant

-and-

The Aim Group Inc. and General Motors of Canada Limited

Respondents

DECISION

Adjudicator: Kathleen Martin Date: July 4, 2014 Citation: 2014 HRTO 976 Indexed as: Ljuboja v. The Aim Group Inc.

APPEARANCES

Mark Ljuboja, Applicant Wade R. Poziomka, Counsel

The Aim Group Inc., Respondent Alan Riddell, Counsel

General Motors of Canada Limited, Respondent David Bannon, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment and contracts on the basis of family status. The applicant was an employee of the respondent AIM and was assigned to work as a supervisor with the respondent General Motors (initially as an employee of AIM and then by contract). The applicant alleges that he was terminated and/or did not have his employment contract renewed as a direct result of an issue involving his brother, who was similarly employed and/or contracted to work with General Motors.

2Pursuant to a Case Assessment Direction dated May 13, 2013 and prior to requiring the respondents to file a response, the Tribunal directed, on its own initiative, that a summary hearing be held to determine whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed. In its CAD, the Tribunal stated:

In this case, the issue will be whether, assuming the allegations to be true, the applicant’s allegations may be reasonably considered to amount to a Code violation. The applicant alleges that the respondents failed to renew his contract on the basis of his brother’s conduct in the workplace. The definition of family status in the Code does not include sibling relationships, and it is not clear on the basis of the allegations in the Application that the applicant is alleging that the respondents acted on the basis that they were aware that his brother was like a “father” to him.

3A summary hearing was held on May 15, 2014. The applicant filed written submissions, various cases and an affidavit of the applicant. The respondent General Motors also filed a case in support of its position. I also heard oral submissions from the parties.

4For reasons that follow, the Application is dismissed. Even applying a broad and liberal interpretation of the Code as argued by the applicant, I find that the Application has no reasonable prospect of success.

Background Facts

5For purposes of the summary hearing, I assume the facts set out in the Application and the affidavit filed in support of the applicant’s submissions in the summary hearing to be true. While the respondents objected to the Tribunal’s consideration of this affidavit, it is not unusual at a summary hearing for an applicant to point to and rely on additional facts in support of the claim being brought and for the Tribunal to assume such facts to be true for the purpose of the summary hearing. In the circumstances, I have considered the additional facts set out in the affidavit on this basis.

6The narrative to the Application outlines the details about the applicant’s employment and/or contract. The applicant worked full-time as a supervisor on the production line. In or around mid to late December 2012, the applicant and his brother (who was also employed/contracted as a supervisor) were informed that their contracts were not being renewed. Of the approximate seven supervisors, only the applicant and his brother did not have their contracts renewed. Following the termination and/or failure to renew the applicant’s and his brother’s contracts, two additional supervisors were placed at “CAMI” (i.e. General Motors).

7The Application includes details of the issue involving the applicant’s brother which in the applicant’s view, led to the termination and/or failure to renew the contract of the applicant and his brother. At this stage of the proceeding, I do not find it necessary to include those details. I assume for purposes of the summary hearing that the applicant will be able to establish that he was terminated and/or did not have his contract renewed “as a direct result of the issue” his brother had in the workplace.

8The particulars of the applicant’s relationship with his brother are referenced briefly in the Application The applicant states that his brother grew up without a father from a very young age and that his brother, being older than the applicant (subsequently clarified at the hearing as being approximately two years older) assumed both the role of “brother” and “father”” to the applicant.

9In addition, in the affidavit, the applicant elaborates on the details of his relationship with his brother. The applicant states that he and his brother lost their father to heart disease when the applicant was nine years old. The applicant states that his mother treated his brother as the “man of the house” after the applicant’s father passed away and his brother “accepted this responsibility” and was “always there if the [applicant] ever needed anything and still is”. The applicant states that his brother offered to pay for the applicant’s university education and that he has “always turned to [his brother] for advice whether it was employment, buying a house or dealing with life situations”. The applicant states that his brother helped him to obtain employment on three occasions including with the respondents. The applicant also states that he and his brother asked to be scheduled on the same shift so they could car pool together and that when dismissed, the applicant and his brother worked the same shift, were in the same department and car pooled together every day.

10At the summary hearing, I asked the applicant to address the respondents’ knowledge of the relationship between the applicant and his brother. While disputing the relevance of this issue, the applicant stated that the respondents were aware that they were siblings and that AIM would have been aware that his brother got him his job.

Analysis and Decision

11The Code prohibits discrimination in contract (section 3) and employment (section 5) because of family status. Family status is defined in section 10:

“family status” means the status of being in a parent and child relationship;

12The issue before me in this summary hearing is whether the applicant has no reasonable prospect of establishing that the respondents discriminated against him on basis of family status.

13The applicant acknowledges that family status does not extend to siblings where a sibling or family member does not stand in the role of a parent. However, the applicant submits that family status should be interpreted in a broad, purposive and expansive manner and thus extended to relationships where siblings stand in a parent and child relationship. In this particular case, the applicant submits that his brother assumed the role of father to him when his biological father passed away and his brother assisted him with all of the typical duties that would have traditionally been the duty of his father citing the facts in the Application and affidavit.

14In support of his submissions, the applicant cites a number of cases including B. v. Ontario (Human Rights Commission), 2002 SCC 66 (for the proposition that family status includes the specific identity of one’s child) and the decision of an Ontario Board of Inquiry in Dudik v. York Condominium Corp. No. 216 (1990), 1990 CanLII 12506 (ON HRT), 12 C.H.R.R. D/325, for the statement that the definition of family status would encompass someone acting in the position of parent to a child – for example a legal guardian or even an adult functioning in fact as parent in a “parent and child ‘type’ of relationship”. The applicant also references the Ontario Human Rights Commission’s Policy and Guidelines on Discrimination because of Family Status, 2007 which the applicant submits states that “family status” would embrace a range of circumstances where there are no blood or adoptive ties but with “similar relationships of care, responsibility and commitment”.

15The respondents submit there is no reasonable prospect of the applicant establishing discrimination. The respondent GM argues that family status should be limited to a parent-child relationship where the parent is legally defined by adoption or blood. Alternatively, if a broader interpretation is accepted, GM submits that the applicant has not pointed to any evidence on which to ground his action under the Code. GM notes that the applicant and his brother are in their 40’s and there is no evidence of dependency. Further and in any event, GM argues that it had no knowledge of such a relationship.

16The respondent AIM adopts the submissions of GM and reiterates that there are no facts before the Tribunal that AIM knew or ought reasonably to have known of a parent and child type of relationship. AIM submits that the fact highlighted – that the applicant’s brother got him his job – is not an “inherent trait” of a parent-child relationship.

17Even accepting the facts as alleged by the applicant, and applying a broad and liberal interpretation of the Code, I do not find that the applicant has a reasonable prospect of establishing that he was discriminated against based on his family status.

18While the applicant makes a broad statement that his brother stood in a role of a father to him, the details of this relationship are sparse. In particular, apart from conclusory statements such as his brother was always there if he needed anything, the applicant relies on the facts that his brother offered to pay for his university (notably the applicant does not state that his brother paid for his university), that his brother helped him to get three jobs, that he and his brother car-pooled to work and that the applicant turned to his brother for advice. In my view, it is not clear that these alleged facts would be sufficient to establish a parent-child relationship any more than a relationship between siblings or even close friends.

19In any event, even if the applicant’s relationship with his brother is in fact akin to that of a parent and child, I find that the applicant has no reasonable prospect of establishing discrimination given the nature of the claim being advanced. The applicant is alleging direct discrimination, not indirect discrimination. The Application states that the applicant was terminated or did not have his contract renewed as a “direct result of the issue [his brother] had in the workplace”. In my view, in order to have a reasonable prospect of succeeding with this claim, the applicant would have to establish that the respondents singled him out at least in part because of his “family status”, i.e. that the applicant and his brother stood in a parent and child type of relationship.

20There is no evidence that the respondents knew or ought reasonably to have known that the applicant and his brother were in a parent and child type of relationship. The applicant alleges the respondents only knew they were siblings and that the applicant’s brother got him the job; facts which are not, in my view, inherent or unique to a parent and child relationship.

21I agree with the respondents that knowledge of the relationship is relevant (in my view given the claim being advanced). In the absence of knowledge of the purported relationship between the applicant and his brother, the applicant has no reasonable prospect of proving that the disadvantageous treatment is linked to family status. At best, the disadvantageous treatment may be linked to his sibling status but as the applicant acknowledges this status is not a prohibited ground under the Code.

22I note that the applicant did assert that he was not prepared to deal with the “explicit knowledge” issue at the summary hearing although he did not explain why. To the extent the applicant was suggesting that this issue was new, I disagree. This issue was highlighted in the Case Assessment Direction setting the Application down for a summary hearing (see para. 2 above) and at the outset of the initial summary hearing date of March 25, 2014 which was adjourned because one of the respondents had not received material that had been filed by the applicant. In these circumstances, I find the applicant had sufficient notice of the issue and therefore an opportunity to respond to the issue if he chose to do so.

23For the above reasons, I find that there is no reasonable prospect that the Application will succeed.

24Accordingly, the Application is dismissed.