Taylor v. K-G Spray-Pak Inc., 2015 HRTO 1307

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Insworth Taylor Applicant

-and-

K-G Spray-Pak Inc. Respondent

INTERIM DECISION

Adjudicator: Alison Renton Date: October 2, 2015 Citation: 2015 HRTO 1307 Indexed as: Taylor v. K-G Spray-Pak Inc.

APPEARANCES

Insworth Taylor, Applicant Marie Libertatore, Representative

K-G Spray-Pak Inc., Respondent James Heeney, Counsel

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 has yet to file a Response. It did, however, file a Request for Order During Proceedings (“RFOP”) requesting that the applicant provide the names of the “African Americans” whom he claims were terminated, as well as the names of the “East Asians” who replaced them. The applicant did not file a Response to the RFOP, but his representative did write a letter to the respondent’s counsel saying that the applicant was not in a position, at this time, to provide the requested information.

3The Tribunal issued a Case Assessment Direction (“CAD”) directing a summary hearing to be scheduled. The respondent filed materials in advance of the summary hearing, but the applicant did not.

4The summary hearing took place on October 1, 2015 and both parties participated.

the summary hearing

5The test the Tribunal applies to this stage in the process is whether an application has “no reasonable prospect of success”. It is the role of the Tribunal to examine the allegations and determine whether or not an application should move to the next stage in the hearing process. If the Tribunal determines that an application has no reasonable prospect of success, it will be dismissed. In some cases, the Tribunal finds that only part of the application is considered unlikely to succeed. During a summary hearing, the Tribunal does not hear any evidence. In the case where a Response has not been filed, the Tribunal does not resolve factual disputes.

The Applicant’s Position

6The applicant self-identifies as being a black man from Jamaica, who experienced a workplace injury on November 7, 2012. He alleges that on November 8, 2014, he was terminated by the respondent for allegedly attempting to remove a cardboard drum from the workplace that had items in it. He claims that the respondent’s practice was to permit employees to remove drums from the workplace, that he did not know that there were items in the drum, and that he was set up by the respondent. He alleges that the respondent was terminating “African Americans” and replacing them with “East Asians”.

7During the summary hearing call, the applicant provided the names of three other individuals, whom he identified by race or colour and claims are the “African Americans” who were terminated shortly after he was terminated. He also provided four names of individuals whom he claims are “East Asian” who were hired to replace the terminated “African Americans”. For the purposes of this Interim Decision, it is not necessary to identify the names of these individuals.

8He further asserts that the respondent fired him two years to the day after he experienced a workplace injury. This enabled the respondent to comply with its re-employment obligations under the Workplace Safety and Insurance Act, 1997, but giving the timing, it prevented the applicant from any recourse before the Workplace Safety and Insurance Board.

The Respondent’s Position

9The respondent submits that the Application should be dismissed as having no reasonable prospect of success. It submits that it is not enough for an application to continue to proceed because an applicant alleges that a termination was discriminatory because he or she refers to a Code ground. If that were the case, all applications would continue in the Tribunal’s process.

10The respondent submits that the applicant was terminated because he attempted to steal the cardboard drum containing the respondent’s products in it. In support of its position, the respondent filed a witness statement of another employee, who, according to the statement, witnessed the applicant’s actions in attempting to remove the cardboard drum.

11Furthermore, the respondent submits that it cannot respond to the names of the terminated employees or the hired employees because these names were not provided prior to the call, despite the respondent writing to the applicant’s representative and despite a RFOP being filed requesting this information. Alternatively, the respondent submits that the applicant has not provided a link to establish that individuals whom he named were of the same background and were replaced with others of a similar background.

12Finally, the respondent submits that the applicant had not raised any issues about his disability following his return to work and only now claims that his termination was because of his disability.

order and next steps

13After reviewing the information before me, I have determined that the Application can continue to proceed.

14The applicant has pointed to some evidence, in terms of the names of the individuals who were terminated and those who were subsequently hired, in support of his position that his termination was based upon his race. There are factual disputes between the parties in relation to the allegations about the applicant removing the cardboard drum, which cannot be resolved as a summary hearing as the Tribunal does not hear evidence.

15The definition of “disability” under section 10(1)(e) of the Code includes, “an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997”. The applicant’s claim that the timing of his termination, the day after the respondent’s WSIA re-employment obligations ended, is sufficient for the Application to continue to proceed.

16Allowing the Application to proceed is no indication as to whether or not the Application will ultimately be upheld or dismissed. Like all applicants who appear before the Tribunal, this applicant bears the onus of proving discrimination on a balance of probabilities.

17By Friday, October 9, 2015, the applicant shall file with the Tribunal, copying the respondent, the names of the “African Americans” he identified during the summary hearing were also terminated, as well as the names of the “East Asians” who were hired to replace the terminated employees.

18The respondent shall file a Form 2 Response to the Application within 35 days of receiving the names of the individuals identified in para. 17 above.

19The applicant shall file any Form 3 Reply within 14 day of his receipt of the Form 2 Response.

20I am not seized with this matter.