Sharma v. Veolia Transportation Services (Canada), 2015 HRTO 115

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Raman Sharma Applicant

-and-

Veolia Transportation Services (Canada) Inc., Tokmakjian Inc. (now operating as Tok Transit) and Ben Pistillio Respondents

DECISION

Adjudicator: Brian Eyolfson Date: January 26, 2015 Citation: 2015 HRTO 115 Indexed as: Sharma v. Veolia Transportation Services (Canada)

APPEARANCES

Raman Sharma, Applicant Self-represented

Veolia Transportation Services (Canada) Inc., Andreea Claici and Christina Trentadue, Respondents Thomas W. Agnew, Counsel

Tokmakjian Inc. (now operating as Tok Transit) and Ben Pistillio, Respondents Joseph K. Morrison, Counsel

The Regional Municipality of York – York Region Transit, Respondent Stephen Maio, Counsel

Introduction

1This Application was filed under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and alleges discrimination with respect to employment and goods, services and facilities on the basis of disability. This Decision follows a summary hearing.

2The respondent, Tokmakjian Inc. (“Tokmakjian”), held several contracts with York Region Transit (“YRT”) to provide YRT with drivers and buses. The applicant was employed by Tokmakjian as a bus driver, to provide services pursuant to a contract between Tokmakjian and YRT. At the end of July 2010, that contract ended, and the respondent, Veolia Transportation Services (Canada) Inc. (“Veolia”), began providing YRT with transit services.

3At the outset of the summary hearing, the applicant agreed that The Regional Municipality of York – YRT, Andreea Claici and Christina Trentadue, could be removed from the Application, and the Tribunal confirmed that they were removed as parties to the Application. The style of cause has been amended accordingly.

The Applicant’s Allegations

4The Application includes the following allegations:

a. On October 31, 2008, while employed by Tokmakjian, the applicant was in his car and he was rear-ended by a tractor trailer. He was not at fault. He was taken to the hospital by ambulance, and he was unable to drive for more than 7 months. He was under medical treatment and kept informing his employer about his condition. Eventually, his doctors gave him permission to re-start work on modified hours, which he did;

b. The applicant took medications, under the supervision of his doctors, that had some side-effects on his physical and mental health. He still used to feel depressed, and he was depressed on January 2, 2010 when he was driving and someone followed him very closely, which scared him because of his past experience. He had to speed up, but his vehicle was caught and impounded by police, and his licence was suspended for a week. During that week he suffered even worse depression;

c. The applicant went to a hospital, and an attending physician wrote a letter without examining him properly. While a chief psychiatrist wrote that he was fine, and fit to resume his job as a transit driver, in the meantime, he received a letter suspending his driver’s licence. He was not at work those days because of neck pain, which started all of a sudden, and he informed his employer about his absence from work with a doctor’s note;

d. The applicant received a call from Tokmakjian’s Human Resources (“HR”) Manager who wanted to see him urgently He met with him the next day, and the HR Manager asked him why he did not inform them about his one week licence suspension. The HR Manager also blamed the applicant for making an excuse for not coming to work by sending a doctor’s note. The applicant said that he was not feeling well, but the HR Manager was not convinced and called his doctor who explained the applicant’s situation with pain;

e. The applicant’s licence was under suspension for depression until August 25, 2010. He informed Tokmakjian that his licence was under suspension for medical reasons. He went to a “driver’s room” where drivers were signing to their crews. He chose a crew, but the HR Manager told him that he was not allowed to sign to a crew. He was told to first get his licence. The HR Manager and the Operations Manager, the individual respondent, Ben Pistillio, reacted very rudely. They could have “adjusted” him, and given him some other duty, but they refused. There was already an ex-driver with health issues working in dispatch;

f. The applicant’s employment was terminated because Veolia took over the YRT contract from Tokmakjian, effective August 1, 2010;

g. Tokmakjian offered a few transit drivers a job in their Mobility Transit division of YRT, because they still had that contract. They also had “Can-ar Coach Service”. The applicant asked all the managers, and the Vice-president, but everyone refused, and made the excuse that they are not busy and most of their coach service vehicles are parked in the yard;

h. The applicant again asked to be placed with Mobility Transit, but they refused because they had already adjusted a few drivers. They suggested that he try with other transit services, or Veolia;

i. After a few days, the applicant asked for a copy of his Record of Employment (“ROE”). He was not provided with a complete ROE. He asked for a complete record of his 3 years of employment, but the HR Manager refused, and said that he could only provide him with a record of the last 6 months;

j. During the period of his licence suspension, the applicant contacted Veolia and filled out an application with approximately 200 other drivers. He explained his situation in writing and verbally to two male representatives of Veolia. Veolia’s HR department promised that they would hire most of the drivers. The drivers had to appear for a written test. He asked another individual with Veolia’s HR department if he could write the test, and he spoke to his department manager and they refused. He told them that he would perform the duty of driving after his licence was reinstated, but they did not want him to write the test because of his licence suspension;

k. He wrote a few emails to a representative of Veolia’s HR department (Andreea), and explained his situation. He asked to be allowed to write the test and to join their team when he got his licence. He explained that he no longer had depression, that he would provide letters from all of his doctors and that he had all the necessary documents to prove that he was, and is, fit to resume the bus driver’s job. He never got any reply from Andreea;

l. He went to Veolia’s offices on September 2, 2010, when he got his licence back, and he met Andreea. He told her that he got his licence back, and provided a copy of his reinstated licence. She said that they were not hiring at the time, or for the next couple of months; and,

m. On May 30, 2011, Veolia advertised the transit driver’s job on the internet, and he applied online and in person. Along with the application, he explained everything in a letter which he handed to a representative of Veolia’s HR department (Christina). He indicated to Veolia that, while he had demerit points, until January 2012, he was ready to do any desk or yard job, on any day or shift, but no one replied.

The Responses of the Remaining Respondents to the Allegations

Tokmakjian and Ben Pistillio

5In their Response to the Application, Tokmakjian and Mr. Pistillio submit that the applicant was hired by Tokmakjian as a bus operator on or about September 11, 2007. On October 31, 2008, the applicant was in an accident in his own car, and was off work for approximately 10 months convalescing. On August 11, 2009, the applicant provided a doctor’s note stating he was able to return to work on modified hours (4-5 hours daily) in the afternoon, effective August 17, 2009. Tokmakjian accommodated the applicant and provided him with modified hours in the afternoon.

6As a condition to his continued employment as a bus operator, the applicant was required to maintain a BZ driver’s licence in good standing. Bus operators were also required to self-report if their licence was suspended, and the company did regular driver’s record searches to ensure that it did not allow drivers to operate buses if they should not be operating them.

7On January 2, 2010, the applicant advised Tokmakjian that he was sick. On January 14, 2010, he provided a doctor’s note stating he was not well and needed to rest from January 4 to 10, 2010. Between January 14 and 18, 2010, he provided two additional doctor’s notes which stated “neck pain – unable to turn neck, unable to drive”.

8On January 30, 2010, the applicant’s driver’s licence was suspended for medical reasons. A doctor’s note stated that he had depression.

9On February 4, 2010, a routine driver’s record search showed that the applicant received an administrative licence suspension from the police on January 2, 2010, until January 9, 2010, for racing/stunt driving. The applicant did not notify his employer that his licence had been suspended, and, during a meeting with his employer, he offered no explanation as to why he had not reported this.

10At one point, the applicant attempted to sign up for some shifts as a driver. He was advised that he was not allowed to sign up for any driving as his licence was still suspended.

11At the end of July 2010, Tokmakjian’s contract with YRT ended and Veolia began providing services to YRT. Over 200 Tokmakjian employees, including management, were displaced as a result of losing the contract, and their employment, including the applicant’s, was terminated. A good majority of the employees applied and were hired by Veolia, although approximately 30 of Tokmakjian’s former drivers did not meet Veolia’s criteria and were not hired. Of those 30 drivers, Tokmakjian was able to retain only 2 of them, to assist on a part-time basis with the Mobility Plus contract that remained with Tokmakjian until February 28, 2011, when it was also transferred to Veolia.

12The applicant’s driver’s licence was not reinstated until August 25, 2010, well after the expiry of the contract with YRT. The applicant had already been issued an ROE due to his medical absences in January, so that he could apply for EI benefits. He was issued a further ROE when he returned to work in August 2010 and there was no work for him. Following this, the applicant approached several representatives of Tokmakjian requesting that he be rehired in a different position, but there was no position available for him.

13Tokmakjian and Mr. Pistillio submit that the applicant was not rehired after his driver’s licence was reinstated due to the fact that Tokmakjian lost its contract with YRT, and it was not related to the applicant’s medical condition. They also submit that, at all times, Mr. Pistillio was acting in the course of his employment, and that the applicant has not alleged any facts that would support a finding that Mr. Pistillio ought to be personally liable.

Veolia

14In its Response to the Application, Veolia submits that it was a successful bidder for a contract to operate transit services in York Region on a number of routes that Tokmakjian had been providing transit services on. Veolia took over the work on August 1, 2010.

15In or around April 2010, Veolia began holding what it referred to as “open houses”, after it was given notice that it was the successful bidder and would be providing transit services that Tokmakjian had been providing. Veolia invited all transit operators employed by Tokmakjian, at the time, to apply for jobs with Veolia, and a large number of Tokmakjian employees submitted applications to Veolia. Veolia also received applications from candidates who had never worked for Tokmakjian.

16Veolia submits that, when hiring transit operators, it is required to ensure that the operators have, among other qualifications, a clean driving record and a valid BZ licence. Individuals applying to drive transit vehicles that do not have a valid BZ driver’s licence are not considered qualified for the job.

17Between April and August 2010, Veolia hired a number of individuals who previously worked as transit operators for Tokmakjian, however, approximately 30 former Tokmakjian employees were not hired. A number of applicants who did not previously work for Tokmakjian were also hired around that time.

18The applicant was one of several hundred individuals who applied to Veolia in or around the summer of 2010 in anticipation of Veolia taking over the contract from Tokmakjian. Veolia submits that the applicant acknowledges that, in or around August 2010, when he applied for a job as a transit operator with Veolia, he did not have a valid licence, due to the fact that it had been suspended, and he also did not have a clean driver’s record at the time.

19In responding to the applicant’s submission that he applied for a job with Veolia on a second occasion, when Veolia allegedly posted a job on May 30, 2011, Veolia submits that, by his own admission, the applicant did not have a clean driving record at the time, and continued to have demerit points on his record until January 2012.

20Veolia submits that the applicant has not put forward a sufficient factual basis to demonstrate that he has been subjected to differential treatment on the basis of disability by Veolia. Veolia also filed a Request for Summary Hearing, submitting that the Application has no reasonable prospect of success as against it.

SUMMARY HEARING

21Rule 19A.1 of the Tribunal’s Rules of Procedure, states as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

22In Dabic v. Windsor Police Service, 2010 HRTO 1994 the Tribunal made the following comments about summary hearings, at paras. 8-10:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

23In a Case Assessment Direction (“CAD”) dated May 21, 2014, the Tribunal directed that a summary hearing be held to determine whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application, or part of the Application, will succeed.

24The Tribunal also explained in the CAD that it does not have the general power to deal with allegations of unfairness. The Tribunal can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground. The Tribunal stated that, having reviewed the Application and the Responses, it appears that the applicant may be unable to prove a link between the actions of the respondents and the ground of disability.

25The Tribunal directed the applicant to make argument at the summary hearing as to why the Application should not be dismissed as having no reasonable prospect of success, and to point to the evidence on which he will prove a link between the respondents’ actions and the ground cited. The Tribunal also indicated that the applicant would be called upon to address the arguments made by the respondents in their Responses to the Application, and the Request for Summary Hearing.

Reasonable Prospect of Success

Tokmakjian and Mr. Pistillio

26At the summary hearing, the applicant was asked to first address his allegations as against the respondents, Tokmakjian and Mr. Pistillio.

27The applicant took issue with being accused of not informing management that his licence was suspended when he was sick. He submitted that his not informing management that his licence was suspended was not wilful, because, at the time, he was sick and could not drive a bus in any event. He also took issue with the respondents questioning if he was trying to use illness to hide the fact that his licence was suspended. The applicant appeared to be offended by having his honesty questioned.

28As I understand the applicant’s position, he alleges that he was subjected to discrimination when he was asked why he did not inform his employer that his licence was suspended, and questioned if he was using illness (neck pain) as an excuse to hide the fact that his licence was suspended. The applicant acknowledges in his Application that his vehicle was impounded and his licence was suspended due to speeding. He does not dispute that he was required to inform his employer that his licence was suspended and that he did not do so. Rather, he informed his employer he could not work at the time due to neck pain. There also does not appear to be any dispute that the applicant advised his employer that he could not work due to neck pain the same day that his licence was suspended for speeding.

29In the particular circumstances, I find that there is no reasonable prospect that the applicant can establish that he was subjected to discrimination on the basis of disability when he was asked why he did not inform his employer that his licence was suspended, and questioned if he was using illness as an excuse to hide that fact. I also note that there is no indication from the parties that the applicant was reprimanded in any way, or suffered any consequences, as a result of not informing his employer that his licence was suspended for a week in January 2010.

30The applicant also alleges that he was subjected to discrimination when Tokmakjian did not rehire him, and that he twice asked to be placed as a driver with Tokmakjian’s Mobility transit division. He also suggests in his Application that he could have been accommodated with other duties while his licence was suspended, and that this was refused.

31In my view, the applicant’s allegation that he was subjected to discrimination when he was not rehired after his licence was reinstated is speculative. I note that the applicant acknowledges in his Application that his employment with Tokmakjian was terminated when Veolia took over the YRT contract, effective August 1, 2010. He does not dispute that his driver’s licence was not reinstated until August 25, 2010. At the summary hearing, the applicant did not point to any evidence reasonably available to him that would suggest that Tokmakjian actually had positions in which the applicant could have been rehired at the time. Instead, the applicant submitted that it is true that Tokmakjian does not discriminate on the basis of “health”, as the company rehired an individual who had a history of heart failure and was part of a group of drivers not hired by Veolia. He also acknowledged that Tokmakjian had just a few drivers with its Mobility Plus contract, which it maintained for a period of time after the contract under which he worked was transferred to Veolia. He did not dispute Tokmakjian’s position that it only retained 2 of 30 drivers, who were not hired by Veolia, to assist on a part-time basis with its Mobility Plus contract, and acknowledged in his Application that Tokmakjian offered “a few” transit drivers a job with that contract. He also submitted at the summary hearing that it was possible that the respondents’ treatment of him was retaliation, as a result of his reporting that some buses were not safe.

32With respect to the allegation in his Application that he could have been accommodated with other duties while his licence was suspended, and that this was refused, he acknowledges that, at the time, there was already an “ex-driver” with health issues working in dispatch. The applicant also did not provide any particulars of actually asking to be accommodated with alternate duties while his licence was under suspension, and he did not address his allegation that he was not accommodated while his licence was suspended at the summary hearing. I note that the applicant does acknowledge in his Application that he was accommodated by Tokmakjian in the past, after he was in a car accident.

33In the circumstances, I find that there is no reasonable prospect that the applicant can establish that he was subjected to discrimination either when he was not rehired, or when he was not provided with other duties while his licence was under suspension, by Tokmakjian.

34The only allegation against Mr. Pistillio in the Application is that he reacted very rudely to the applicant at one point, and the applicant did not raise any allegations against Mr. Pistillio at the summary hearing. Based on the materials and submissions before me, I find that there is no reasonable prospect that the applicant can establish that Mr. Pistillio subjected him to discrimination within the meaning of the Code.

35In the circumstances, the Application as against Tokmakjian and Ben Pistillio is dismissed on the basis that it has no reasonable prospect of success.

Veolia

36With respect to his allegations as against Veolia, the applicant submitted at the summary hearing that he applied with Veolia and they did not let him write a test. He submitted that he was on “disability” with Tokmakjian at the time. He also submitted that Veolia might have been aware that he filed a grievance, and might have found him to be a problematic person. He also submitted that he went to Veolia’s office, and they said that they were not hiring at the moment, but when he sent his wife, they gave his wife an application form.

37As I understand the applicant’s allegations as against Veolia, he alleges that he was subjected to discrimination on the basis of disability when he applied to Veolia with approximately 200 other drivers, and he was not permitted to write a test. He alleges in his Application that he was told by a representative of Veolia that they did not want him to write the test because of his licence suspension. While the applicant alleges that he explained his “situation” to representatives of Veolia, it is not clear if he told them that he had a disability, and he did not address this at the summary hearing.

38In any event, it appears that there is no dispute that the applicant was applying to Veolia for a job as a transit operator at a time when he did not have a valid driver’s licence, and that a valid BZ driver’s licence was a requirement for the job. At the time, the applicant was an employee of Tokmakjian, and he had never been employed by Veolia. There is no indication that Veolia had any particular obligation or duty to consider the applicant for employment.

39It also appears that there was no indication at the time the applicant initially applied to Veolia as to if and when the applicant’s licence might be reinstated. I note that the applicant alleges in his Application that, at some point, he explained in an email to a representative of Veolia’s HR department (Andreea) that he was no longer depressed, and that he could prove he was fit to resume the bus driver’s job. Although the applicant did not indicate in his Application when this occurred, and he did not address this at the summary hearing, it appears that this is alleged to have occurred sometime after the applicant initially applied to Veolia, and closer to the time his license was reinstated. As noted below, Veolia submits that it was only able to locate one email from the applicant, which was sent on November 8, 2010, and the applicant did not refer to the existence of any earlier email. In the circumstances, I am not satisfied that the applicant can establish that Veolia had any indication as to if and when the applicant’s license might be reinstated when he initially applied to Veolia along with approximately 200 other drivers, prior to August 2010.

40In my view, the applicant’s allegation, even if assumed to be true, does not amount to a violation of the Code. It appears that the applicant wanted to proceed through Veolia’s application process, and, assuming he met all other qualifications, be hired and commence driving buses for Veolia at some later date when his licence was reinstated. In the circumstances, I am not satisfied that the applicant has a reasonable prospect of establishing that Veolia subjected him to discrimination when he was not allowed to write a test to be a transit operator when he did not have the required driver’s licence at the time, and it was not clear to the respondent if and when his license might be reinstated, whether or not Veolia was aware that his licence was suspended in relation to a disability.

41In his Application, the applicant also alleges that he went to Veolia’s offices on September 2, 2010, and told them that he got his licence back, and provided a copy of his licence. He was told that they were not hiring at the time, or for the next couple of months. He also alleges that, on May 30, 2011, Veolia advertised the transit driver’s job on the internet, and he applied online and in person. Along with the application, he explained everything in a letter which he handed to a representative of Veolia’s HR department. He indicated to Veolia that, while he had demerit points until January 2012, he was ready to do any job, on any day or shift, but no one replied.

42In the Request for Summary Hearing, Veolia submits that it was only able to locate one email from the applicant, which was sent on November 8, 2010, and attached a resume and a letter. Veolia submits that this was sent more than 4 months after Veolia’s hiring of Tokmakjian’s employees had concluded, and Veolia was not hiring any transit operators at the time. With respect to the applicant’s allegation that he applied to Veolia in response to a May 30, 2011 online posting, Veolia submits that it has been unable to find a record of the applicant applying at that time. Veolia also submits, however, that the applicant admits he had demerit points on his driver’s record until January 2012, and he was therefore ineligible for employment based on his driver’s record at the time.

43At the summary hearing, the only further submission that the applicant made regarding his attempts to obtain employment with Veolia after his licence was reinstated was that he went to Veolia’s office, and they said that they were not hiring at the moment, but when he sent his wife, they gave her an application form. He did not indicate when this occurred. I also note that, while the applicant alleges that he was told by Veolia that they were not hiring at the moment, he never alleged or submitted that he was actually denied an application form. He also alleges that he earlier submitted an application, and that he later submitted an application both online and in person.

44It appears from the parties’ materials and submissions that Veolia commenced hiring transit operators in preparation for taking over the YRT contract from Tokmakjian and providing transit services commencing August 1, 2010. The applicant did not dispute in any way in his Application, or in his submissions, that Veolia was not hiring at the time he allegedly attended their office in September 2010. In the circumstances, even if the applicant attended Veolia’s office in September 2010, after his licence was reinstated, and was told that Veolia was not hiring at the time, he has not explained how this could amount to a violation of the Code, or what evidence would establish that it was a violation of the Code. This allegation appears to be speculative.

45Similarly, even if the applicant applied to Veolia online and in person, in response to a May 30, 2011 job ad, and did not hear back, the applicant has not explained how this could amount to a violation of the Code, or what evidence would establish that it was a violation of the Code. This allegation also appears to be speculative.

46In the circumstances, the Application as against Veolia is also dismissed on the basis that it has no reasonable prospect of success.

CONCLUSION

47The Application is dismissed on the basis that it has no reasonable prospect of success.