Javed Iqbal v. Lowe’s Companies Canada ULC, 2015 HRTO 1032

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Javed Iqbal Applicant

-and-

Lowe’s Companies Canada ULC Respondent

DECISION

Adjudicator: Colin Johnston Date: August 4, 2015 Citation: 2015 HRTO 1032 Indexed as: Iqbal v. Lowe’s Companies Canada

APPEARANCES

Javed Iqbal, Applicant Self-represented

Lowe’s Companies Canada ULC, Respondent Andy Pushalik, Counsel

Introduction

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

2The respondent made a request for a Summary Hearing to dismiss the Application on the basis of delay and that there was no reasonable prospect that the Application would succeed at hearing. A Summary Hearing was held on July 10, 2015 by way of teleconference.

3The applicant is an individual who self-identifies as a person of Pakistani origin. He was employed as a sales associate in the plumbing department of the respondent’s retail store in Pickering from 2010 to 2013. The applicant alleges that the respondent discriminated against him on the basis of race and disability with respect to the following events:

a. Termination of his employment on October 11, 2013;

b. Imposition of three written warnings dated March 4, 2011, March 20, 2011 and December 12, 2012;

c. Denial of a transfer to the respondent’s Scarborough store in December 2012;

d. Denial of a promotion to the position of Department Manager in the plumbing department;

e. Denial of time off to attend an accounting course in September 2013; and,

f. Failure to accommodate the applicant between August 2011 and May 2012 following a workplace accident.

Submissions

4The applicant believes that he was singled out for differential treatment because of his race and the fact that he was injured at work back in 2011. The applicant submits that the respondent had no cause to discipline or terminate his employment. He further submits that there was no reason to deny his requests for a promotion and a transfer to the Scarborough store, as he was the best salesperson in his department. He also received a certificate of outstanding service from the President of Lowe’s for his performance.

5The respondent submits that the allegations set out in the Application are untimely with the exception of the applicant’s termination and his denial of time off in September 2013.

6The respondent further submits that there is no reasonable prospect that any of the allegations raised in the Application will succeed. To that end, the respondent states that there is no evidence to support the applicant’s claims. The allegations are based merely on his own personal belief that he is being discriminated against.

Analysis

Timeliness

7The allegations involving the three disciplinary warnings, denial of promotion, denial of transfer, and failure to accommodate, all fall beyond the one year limitation for filing a complaint under the Code.

8Section 34(1) of the Code provides:

34(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.

34(2) A person may apply under subsection (1) after the expiry of the time limit under that section 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.

9The applicant argued that all of the allegations in his Application are timely. To that end, he submits that the incidents of his mistreatment (discipline, denial of promotion, denial of transfer, termination) represent a pattern of discrimination.

10To constitute a “series of incidents” within the meaning of section 34(1)(b) there must be a succession of events which form a pattern of discriminatory conduct. If the incidents involve separate or discrete events then they are generally not viewed as a pattern of discriminatory conduct sufficient to trigger this section: see AlSaigh v. University of Ottawa, 2012 HRTO 2 at paragraph 8 and cases cited therein.

11The Application alleges discrimination based on race and disability. With respect to disability, the applicant asserts that the respondent failed to offer him modified duties following a workplace accident in August 2011. This continued until he returned to regular duties in May 2012. There are no further incidents of disability-based discrimination raised in the Application, which occur after May 2012.

12Even if I were to accept that this represents a series of incidents, the last incident occurred in May 2012, some two years prior to the filing of this Application.

13As to the discipline, I note that the applicant received three disciplinary warnings, all for different reasons. The first warning involved the applicant claiming unapproved overtime. The second warning involved a customer complaint about the applicant’s communication style. The third warning involved the applicant extending his time off without authorization during a visit to Pakistan.

14The applicant submits that the discipline itself represents a pattern of discrimination because the respondent simply had no cause to discipline him. The applicant feels that the only explanation for his discipline is because of his race and the fact that he was previously disabled. The applicant provides no evidence, circumstantial or otherwise, to connect these events to a prohibited ground under the Code.

15I accept that there is a connection between the applicant’s discipline and his being denied a promotion and a transfer to another store. However, there is no evidence to suggest that the denial of promotion or transfer were in anyway, connected to discrimination under the Code. This is simply the applicant’s belief.

16Other than the applicant’s assertion that all of these events are connected and are based on discriminatory grounds, there is no evidence to establish that these incidents represent a pattern of discriminatory conduct. Accordingly, all of the allegations raised in the Application other than the applicant’s termination and denial of time off in September 2013 are untimely.

17The applicant further argued that the delay in filing the Application was incurred in good faith. The Application was filed in May 2014 some 8 months after the applicant was terminated in October 2013. He explained that he did not file an application while he was still employed with the respondent, as he was scared to lose his job.

18He explained that he waited another eight months to file his Application because he was in the process of writing to the company’s CEO and human resources department in the hopes of resolving the matter.

19Neither of these explanations represents grounds for extending the time limits for filing a complaint. The majority of applications filed with the HRTO involve discrimination in the context of employment. If I were to accept that the applicant could simply delay filing an Application until the end of his employment, then the time limits under the Code would have little meaning: see Kasubeck v. General Dynamics Land Systems Canada 2013 HRTO 1722 at paragraphs 25 through 28. Moreover, the Code provides protections against reprisal should an employer take steps to discipline or dismiss an individual who seeks to enforce their rights [s. 8 of the Code].

20As to the further eight month delay in filing the Application, I see no reason as why the applicant could not file an Application and continue dialogue with his former employer. The applicant cannot sit on his rights while he attempts dialogue with his former employer: see Velichka v. Sears Canada Incorporated 2015 HRTO 625 at paragraph 15.

21There is no evidence to support the applicant’s claim that the delay in filing this Application was incurred in good faith.

No Reasonable Prospect of Success

22Even if I were to find that all of the allegations were timely, it is my view that none of the claims raised in the Application have a reasonable prospect of succeeding, if this matter were referred to a full hearing.

23During the summary hearing, I invited the applicant to explain why he believed the respondent’s treatment of him amounted to discrimination under the Code.

24The applicant stated that the respondent simply had no cause to discipline or terminate his employment. He explained that the evidence relied on by the respondent to discipline him and terminate his employment was false. He felt that other employees were not held to the same standard or the same level of scrutiny as he; but provided no examples to demonstrate how this was the case.

25He further submitted that there was no reason why he was denied a promotion or transfer to another store, as he was the top salesperson in his department.

26As for his request for time off in September 2013, he submitted that other employees had their work schedules changed while they attended college or university. Yet his request was denied.

27The applicant surmised that there was no reasonable explanation other than discrimination to explain why he was singled out in all of these incidents. The applicant feels that the only explanation for his mistreatment is because of his race and the fact that he had a previous disability.

28It may be the applicant’s personal belief that all of these incidents are the result of discrimination. But this is merely speculation. The applicant has put forward no evidence to substantiate this claim.

29As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, there must be a basis beyond mere speculation to demonstrate a connection between the allegations raised in the Application and a breach of the prohibited grounds under the Code. There is no evidentiary basis to ground any finding that the Code has been breached in the circumstances.

30For these reasons, I find that the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.

ORDER

31The Application is, therefore, dismissed.