HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leonardo Galuego

Applicant

-and-

Spectrum Health Care

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: January 15, 2015

Citation: 2015 HRTO 62

Indexed as: Galuego v. Spectrum Health Care

APPEARANCES

Leonardo Galuego, Applicant

Self-represented

Spectrum Health Care, Respondent

Stephanie M. Ramsay, Counsel

Introduction

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent subjected him to discrimination and reprisal.

2The purpose of this Decision is to decide whether the Application should be dismissed on a preliminary basis because it is has no reasonable prospect of success. The parties attended a summary hearing where they had the opportunity to make oral submissions and present documents and cases, which addressed this issue. I have decided to dismiss the Application in part. The following are my reasons.

BACKGROUND

3The following facts are not in dispute. The respondent is a home health care provider, which provides nursing and other support to patients in their homes. In 2004, the applicant began working for the respondent as a casual Personal Support Worker (“PSW”). His duties included providing personal care support to elderly, disabled, and sick patients in their homes.

4The respondent has a general practice of assigning female PSWs to female patients, which means that male PSWs can only be assigned to male patients. Female PSWs, however, can be assigned to both female and male patients. The applicant, who was a male PSW, was only assigned to male patients.

5On January 3, 2014, the applicant sent the respondent’s Human Resources (“HR”) Manager an email, which complained about how a cancelled appointment with a patient had been dealt with, and underpayments documented on his pay stubs.

6On January 11, 2014, the applicant’s supervisor spoke with him by telephone, and requested that he attend a meeting at the respondent’s office to discuss his complaints, as well as concerns that she had about his behaviour. The applicant told his supervisor that he refused to attend a meeting at the office, but was willing to meet at a coffee shop. His supervisor refused to hold the meeting at a coffee shop. She also directed the respondent’s staff to take the applicant off the appointment schedule on January 13 and 14, 2014.

7On January 13, 2014, a respondent staff person informed the applicant by telephone that he would not be scheduled for appointments for the next two days. The applicant then filed an Application under s. 34 of the Code with this Tribunal, which alleged that the respondent had discriminated against him with respect to employment because of his disability, sex, gender identity, and age, and subjected him to reprisal. He also sent an email to the respondent’s HR Manager, which stated that he had become “mentally sick” because of the way the respondent had been treating him, and that he had filed a complaint with this Tribunal.

8On January 14, 2014, the respondent’s HR Manager sent the applicant an email, which informed him that it was mandatory that he attend a meeting with his supervisor to resolve the outstanding issues, and that his supervisor had the prerogative to suspend the assignment of patient appointments to him pending the meeting.

9On the same day, the applicant sent the respondent’s HR Manager an email, which reiterated that he was willing to meet his supervisor at a coffee shop, but not in the office. He stated that he was simply too intimidated, afraid, and in distress, and had an appointment to see his doctor. He subsequently sent the HR Manager a doctor’s note, which stated:

This patient is unwell and unable to work from January 15/14 due to work related stress. He will be able to return to work in 1 week. [Emphasis added]

10After January 22, 2014, the respondent continued to keep the applicant off the appointment schedule because of his refusal to attend a meeting at the office.

11On January 29, 2014, the applicant sent the HR Manager a further email, which stated he was stressed out and did not feel comfortable having the meeting at the respondent’s office, but he was still willing to meet at a coffee shop.

12On February 5, 2014, the applicant’s legal counsel sent the respondent a letter, which took the position that the applicant had been constructively dismissed.

13On February 13, 2014, the Tribunal sent the applicant’s human rights Application to the respondent.

14On February 14, 2014, the respondent sent the applicant a letter, which denied that he had been constructively dismissed, and stated that his refusal to attend a meeting at the office constituted an abandonment of his employment, or alternatively, gross insubordination which justified terminating his employment for just and reasonable cause.

15On March 3, 2014, the respondent issued a Record of Employment, which indicated that it had dismissed the applicant from his employment.

16On March 20, 2014, the respondent filed a Response to the Application, which denied the allegations of discrimination and reprisal, and on April 3, 2014, it filed a Request for Summary Hearing.

17On April 10, 2014, the applicant filed a Reply, which made further allegations of discrimination and reprisal, and opposed the respondent’s Request for Summary Hearing.

18On May 15, 2014, the Tribunal issued a Case Assessment Direction, which granted the respondent’s Request for Summary Hearing. The applicant filed written submissions and documents, and the respondent filed documents, in advance of the summary hearing.

19The summary hearing took place on August 29, 2014. At the outset of the hearing, the applicant confirmed that he was not pursuing any allegations, which were outside the one year time limit in the Code.

ANALYSIS

20The Application relates to sections 5, 8, 9, and 17 of the Code, which provide:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

17. (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

21Rule 19A of the Tribunal’s Rules of Procedure provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 (“Dabic”) 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.

22The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.

23Based on the applicant’s pleadings and written and oral submissions, I understand his allegations of discrimination and reprisal to be the following:

1. The respondent’s practice of assigning female PSWs to both female and male patients, but assigning male PSWs, such as him, only to male patients, constituted discrimination against him because of his sex and gender identity.

2. The respondent also discriminated against him because of his age when it assigned PSWs to patients.

3. The respondent’s decision to take him off the appointment schedule because he refused to attend a meeting at its office constituted discrimination because of his disability.

4. The respondent’s decision to take him off the appointment schedule because he refused to attend a meeting at its office was a reprisal.

5. The respondent’s decision to terminate his employment constituted discrimination because of his disability.

6. The respondent’s decision to terminate his employment was a reprisal.

24I will begin with the applicant’s allegation that the respondent’s practice of assigning female PSWs to both female and male patients, but assigning male PSWs, such as him, only to male patients, constituted discrimination against him because of his sex and gender identity. In my view, this allegation has a reasonable prospect of success because it clearly raises a prima facie case of discrimination. The respondent provided an explanation for its practice, and disclosed records of some of the applicant’s work hours. However, in the absence of witness testimony about the practice, and a lack of a full documentary record (e.g. full records of the hours assigned to male and female PSWs), it is not appropriate to decide this issue at a summary hearing. Accordingly, this allegation will proceed to a merits hearing.

25With respect to the applicant’s other allegations, the focus at the summary hearing was on the second branch of the Dabic test, namely, whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that the respondent discriminated against him because of the Code grounds listed in his Application, and subjected him to reprisal as defined in the Code.

26I turn next to the applicant’s allegation that the respondent discriminated against him because of his age when it assigned PSWs to patients. In his submissions, the applicant stated that this allegation has a reasonable prospect of success because he is 63 years old, and had “no clients for many months” in 2013 despite asking for more hours. In its submissions, the respondent stated that this allegation does not have a reasonable prospect of success because there is a lack of particulars. The respondent also disclosed records of the applicant’s weekly work hours in 2013. The records show that the applicant’s hours fluctuated. Some weeks he worked less than 20 hours, but other weeks he worked more than 40 hours. However, they do not show that he had no clients for many months in 2013. The applicant did not dispute the accuracy of these records.

27In my view, this allegation does not have a reasonable prospect of success because the applicant has not pointed to any evidence that can show that he had no clients for many months in 2013, let alone that there was a link between a lack of assigned work hours and his age.

28I turn next to the applicant’s allegation that the respondent’s decision to take him off the appointment schedule because he refused to attend a meeting at its office constituted discrimination because of his disability. In his submissions, the applicant stated that this allegation has a reasonable prospect of success because the respondent failed to accommodate his mental disability. Specifically, he stated that he was very stressed out, and the respondent should have inquired about his needs and accommodated him. In its submissions, the respondent stated that this allegation does not have a reasonable prospect of success because the applicant provided no information that he had a disability.

29In my view, this allegation does not have a reasonable prospect of success because the applicant has not pointed to any evidence that can show that he had a disability. Although he sent an email to the respondent’s HR Manager, which stated that he had become “mentally sick” because of the way the respondent had been treating him, and asserted before this Tribunal that he had a mental disability, he appears to be referring to the fact that he was suffering from stress. He has not pointed to any medical evidence that shows he had an actual mental disability. In fact, the sole doctor’s note that he provided to the respondent and submitted to this Tribunal stated that he was unwell because of “work related stress”. Suffering from stress can turn into, or be related to, a mental disability, but it is not a disability in and of itself. See Crowley v. Liquor Control Board of Ontario, 2011 HRTO 1429 at paras. 44-64.

30I turn next to the applicant’s allegation that the respondent’s decision to take him off the appointment schedule because he refused to attend a meeting at its office was a reprisal. In his submissions, the applicant stated that this allegation has a reasonable prospect of success because the respondent took him off the schedule after he had complained about how a cancelled appointment with a patient had been dealt with, and underpayments documented on his pay stubs.

31In Noble v. York University, 2010 HRTO 878, the Tribunal held at para. 33 that in an application alleging reprisal, the following elements must be established, on a balance of probabilities:

a) An action taken against, or threat made to, the applicant;

b) The alleged action or threat is related to the applicant having claimed, or attempted to enforce a right under the Code; and

c) An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

32In my view, this allegation does not have a reasonable prospect of success because the applicant has not pointed to any evidence that the respondent took him off the schedule because he claimed or attempted to enforce a right under the Code. Rather, the complaints he pointed to appear to be of a non-Code related nature.

33I turn next to the applicant’s allegation that the respondent’s decision to terminate his employment constituted discrimination because of his disability. In his submissions, the applicant stated that this allegation has a reasonable prospect of success because the respondent failed to accommodate his mental disability. Again, this allegation does not have a reasonable prospect of success because the applicant has not pointed to any evidence that can show that he had an actual disability.

34Finally, I turn to the applicant’s allegation that the respondent’s decision to terminate his employment was a reprisal. In his submissions, the applicant stated that this allegation has a reasonable prospect of success because the respondent terminated his employment after he had filed his Application with this Tribunal. In its submissions, the respondent stated that this allegation does not have a reasonable prospect of success because the applicant has not provided particulars about how the termination was a reprisal.

35In my view, this allegation has a reasonable prospect of success because the applicant pointed to the following evidence:

• On January 13, 2014, he sent an email to the respondent’s HR Manager, which stated that he had filed a complaint with this Tribunal.

• On February 13, 2014, the Tribunal sent his human rights Application to the HR Manager.

• On February 14, 2014, the HR Manager sent him a letter, which informed him that his employment was terminated.

Accordingly, this allegation will proceed to a merits hearing.

36In view of the fact that the applicant and the respondent have both agreed to mediation, the Tribunal’s Registrar will schedule a mediation.

ORDER

37The Tribunal makes the following orders and directions:

1. The applicant’s allegation that the respondent’s practice of assigning female PSWs to both female and male patients, but assigning male PSWs, such as him, only to male patients, constituted discrimination against him because of his sex and gender identity will proceed to a merits hearing.

2. The applicant’s allegation that the respondent’s decision to terminate his employment was a reprisal for filing a human rights Application will proceed to a merits hearing.

3. The applicant’s remaining allegations of discrimination and reprisal are dismissed.

4. In view of the fact that the applicant and the respondent have both agreed to mediation, the Tribunal’s Registrar will schedule a mediation.

38I am not seized of this matter.