Gonzalez v. Revera Long Term Care Inc., 2015 HRTO 1007

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel Gonzalez Applicant

-and-

Revera Long Term Care Inc. c.o.b. as Main Street Terrace Respondent

DECISION

Adjudicator: Naomi Overend Date: July 29, 2015 Citation: 2015 HRTO 1007 Indexed as: Gonzalez v. Revera Long Term Care Inc.

APPEARANCES

Daniel Gonzalez, Applicant Self-represented

Revera Long Term Care Inc., Respondent Erin Porter, Counsel

introduction

1The applicant alleges that the respondent discriminated against him in employment because of race, place of origin, ethnic origin, disability, sex, sexual orientation, family status, marital status and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). By Case Assessment Direction, the Tribunal directed that the matter be scheduled for a summary hearing in person.

2The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that it will succeed.

3For the reasons set out below, I find that there is no reasonable prospect that the applicant will be able to establish a connection between the respondent’s alleged actions and the grounds of discrimination alleged in the Application. I also find that one of the allegations must be dismissed for delay.

Factual Background

4The applicant was a personal support worker (“PSW”) for the respondent retirement facility. He worked there from 2008-2012.

5In his Application the applicant alleges the following actions, which he asserts were discriminatory:

• In 2009, he received a layoff notice as a result of which he lost his permanent line/employment.

• Between May and June 2011, he was rejected for a total of four permanent positions, which went to persons with less seniority than him.

• In July 2011, the Executive Director told him that he was to be careful because a family member [of a resident] had complained about him and he could lose his job. The applicant states that he started feeling harassed and under pressure at this point.

• In July 2011, he was ordered by the Executive Director to undertake cleaning tasks and moving tasks outside his job duties as PSW. This individual also criticized the applicant and a co-worker for a dusty wall clock, by blowing dust from that clock onto their faces. The applicant stated that he was asked to do these duties because the Executive Director was “freaked out” about an upcoming “Minister of Health” visit.

• Within a month of securing a second permanent position, the Executive Director removed him from it in October 2011, citing [residents’] family concerns, absences caused by calling in sick and accusations of lying.

• He required a Record of Employment in order to apply for EI sick pay. In March 2012, he received two ROEs, one of which said he had quit.

• He was called by the respondent to work one day in July 2012 and told that there were more days he could work. The following day, he received a call from the Executive Director who said he could not work as he was not part of the company anymore.

• He set up an appointment to speak to the Executive Director in August 2012 and she kept him waiting four hours, at which point she insulted and harassed him.

6The applicant also included allegations about his bargaining association, but since he did not name it, or any of its employees, as respondents, it is not necessary to further consider these allegations.

7At the hearing, the applicant asserted that he stopped taking shifts because of depression and other illnesses, and that the respondent was aware of this when it issued the ROEs.

8The respondent does not agree with the factual chronology as set out above, but does acknowledge that the applicant lost his permanent position in 2009 as a result of a layoff, and thereafter held a casual position until 2011, when he won a competition for a permanent position. It states he was returned to casual work before the end of his 45-day “trial period” for absenteeism, calling in absences late and a family complaint. It states that the applicant stopped accepting shifts in March 2012 and submitted his resignation in May 2012. It also acknowledges that the Executive Director asked the applicant to do tasks “outside the typical scope of the PSW role,” but states that these duties were also offered to other employees and were not the subject of any grievances.

9Although there was still some ambiguity about dates, the respondent asserted, and the applicant did not dispute, the following additional facts:

• The applicant approached the Executive Director in May 2013 about returning to work. The respondent said that it was prepared to take the applicant back on, but that the applicant provided the Executive Director with a Functional Abilities Form (“FAF”), dated March 28, 2013, suggesting he had lifting and other physical restrictions. She sought further clarification from his treating physician, but did not receive it.

• In October 2013, the Executive Director received a note from the applicant’s doctor saying the applicant was unable to work, and was scheduled for surgery in November 2013. The note made reference to the applicant’s mental health issues, apparently the first time any of the applicant’s medical notes had done so.

10The parties are in agreement that the respondent heard nothing further from the applicant until it was served with his Application, dated November 6, 2013, in January 2014.

Decision and analysis

Delay

11Section 34 of the Code states in part:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

12As noted in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, to determine that a delay in pursuing one’s Code rights was incurred in good faith, the applicant must provide a reasonable explanation for why he did not pursue his Code rights in a timely manner.

13The Application was received by the Tribunal on November 13, 2013. The last incident of discrimination described in the Application was alleged to have taken place in August 2012, some 15 months prior to the Application being filed. Although the applicant agrees that he approached the Executive Director about returning to employment in 2013, he does not allege that the manner in which this request was handled was discriminatory. He acknowledges that his Application is out of time and presented some evidence of his inability to file, which, if accepted, might amount to a good faith reason for delay.

14It is not necessary for me to evaluate this evidence on good faith given my findings that the applicant has no reasonable prospect of success. I would note, however, that even if I were to accept the applicant’s evidence on good faith, the allegation concerning his layoff in 2009 is clearly out of time. The applicant makes no allegations of improper conduct for the two-year period between March 2009 and April 2011. Moreover, the current Executive Director was hired in 2010. That is, the layoff occurred under another Executive Director, a person with whom the applicant apparently had no difficulties.

No reasonable prospect of success

15With respect to the alleged incidents of discriminatory behaviour, I am relying on the allegations as set out in the Application and the further chronology agreed to by the parties concerning the applicant’s later interactions with the respondent.

16The respondent states that the applicant was laid off in 2009 and hired back to a permanent position in 2011, in accordance with the seniority provisions of the Collective Agreement, but the applicant disputes this and submitted at the summary hearing that he intends to call evidence to refute this. For the purpose of this summary hearing, I am not relying on the respondent’s non-discriminatory explanation for these events.

17It is, however, not sufficient for an applicant to show he has been subject to differential treatment; an applicant must also show that the treatment is linked to one or more grounds under the Code.

18With respect to the grounds of race, place of origin and ethnic origin, the applicant states that he is Spanish and believes he was “taken advantage of because [he] could not communicate well in English.” He cannot point to any evidence that supports this theory, such as comments or criticisms (veiled or otherwise) about his communication skills.

19With respect to the persons hired in preference to him in 2011, the applicant stated in his oral submissions that they were Filipino, a fact he discerned from overhearing them speak in their native language. It would appear, on the applicant’s own proposed evidence, that the respondent did not give preference to native-English speakers.

20Likewise, the assertion that he was discriminated against because he is a man is undermined by the applicant’s acknowledgement that the respondent hired male PSWs in preference to him in 2011. When I asked the applicant why the respondent would hire male PSWs if they had an issue with his gender, he said he thought this was because the company knew he would complain and they did this in anticipation of that. He did not suggest he had any evidence in support of this theory.

21The applicant did assert that some of the female residents or family members of the female residents complained about the applicant providing care to them/their family member, but he does not suggest that this had any negative impact on his employment. The applicant is a male in what the respondent acknowledges is a female-dominated profession, but this fact alone proves nothing unless he can point to specific examples of disadvantage linked to his gender. The parties agree that there are male residents as well as female residents at the respondent’s facility.

22As for his sexual orientation, and family and marital status, the applicant states that he overheard staff members making disparaging comments about a gay resident and that resident’s partner. He does not suggest that anyone in management held these views or that he made anyone in management aware that this was being said. In a similar vein, he said that other staff members asked him whether he was married or had kids. This, theoretically, could have been a veiled manner of inquiring about his sexual orientation, but again, the applicant does not allege that he told anyone in management or that anyone in management engaged in this line of inquiry.

23The applicant alleges that the respondent’s requirement that he do activities outside the scope of his duties as PSW sometimes resulted in injuries, but the issue of causation of disability is not one over which this Tribunal has jurisdiction. That is, the Tribunal is concerned with the causation of the adverse treatment, not the causation of the disability.

24The respondent states it was not even aware that the applicant had a disability until he submitted his medical notes long after he stopped accepting shifts with it, and that once it became aware, it expressed a willingness to return the applicant to his casual status once his health permitted it.

25The applicant states that the respondent was aware because his walk, posture and mannerisms are “not normal,” an assertion that I am not prepared to accept in the absence of (actual or proposed) medical evidence. The applicant also stated that he told a co-worker, “Castro,” about his mental disability prior to his issues with the respondent and speculates that Castro, in turn, may have told someone else. Finally, he said he witnessed persons at work whispering about him. Although he could not overhear what they had to say, he assumed that it was about his mental disability. In the absence of anything further, there is no reasonable prospect that these assertions could rise to the level of circumstantial evidence that the respondent was aware of his disability.

26The applicant does acknowledge that his medical notes only specified that he was away for “medical reasons.” He also asserts that his union representative refused to file a grievance on his behalf when he lost his permanent position in October 2011 because he did not believe the applicant had a disability. The applicant also does not dispute the respondent’s position that the Executive Director expressed a willingness to engage in the accommodation process when she learned of his disabilities in 2013. This fact undermines the applicant’s assertion that an inference could be drawn that the Executive Director must have been previously aware of his disabilities.

27Finally, with respect to the ground of age, the applicant makes the bald assertion that the Executive Director thought he was too young to communicate with the families of the residents. The applicant points to no evidence that he might call that anyone at the respondent actually asserted that the applicant, who was 35-37 at the time of the incidents that give rise to this Application, was too young. Nor did he point to any proposed evidence that the respondent otherwise expressed a preference for older workers.

28The Tribunal has held on many occasions that it does not have jurisdiction over general claims of unfairness unrelated to the Code. See, for example, Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at para. 27, and Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 at para. 10. The Tribunal’s jurisdiction is limited to claims of discrimination and reprisal under the Code.

29The applicant’s attempt to link the allegations of disadvantageous conduct with the grounds of discrimination found in his Application is best described as speculative. He was able to point to no proposed evidence he might call that would, in fact, support a connection between these nine grounds and the conduct to which he says he was subject.

30Having reviewed the applicant’s allegations and his proposed evidence, I find that he has no reasonable prospect of success of establishing a link between the respondent’s alleged and actual conduct and any of the grounds cited in his Application.

order

31The Application is dismissed as having no reasonable prospect of success.