Felix v. Metafore Technologies Inc., 2015 HRTO 694

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hans Felix

Applicant

-and-

Metafore Technologies Inc./Hartco Inc., Jennifer Perez and Roberta Renna

Respondents

INTERIM DECISION

Adjudicator: Sheri Price Date: May 27, 2015 Citation: 2015 HRTO 694 Indexed as: Felix v. Metafore Technologies Inc.

APPEARANCES

Hans Felix, Applicant Self-represented

Metafore Technologies Inc./Hartco Inc., Jennifer Perez and Roberta Renna, Respondents Claude Cornellier, Representative

Introduction

1This is an Application under s. 34 of the Ontario Human Rights Code, alleging that the respondents discriminated against the applicant with respect to employment because of race, colour, place of origin, ethnic origin, disability, age and record of offences. The applicant also alleges that the respondents reprised against the applicant for claiming or enforcing his right not to be discriminated against on the basis of creed, contrary to s. 8 of the Code.

2A hearing was held in this matter by telephone on February 26, 2015 to determine whether a proceeding under the Employment Standards Act, 2000, S.O. 2000, c. 41 ("ESA"), appropriately dealt with the substance of the applicant's reprisal claim, such that it ought to be dismissed pursuant to s.45.1 of the Code.

3The telephone hearing was also to determine whether all or part of the Application ought to be dismissed pursuant to Rule 19A of the Tribunal's Rules of Procedure on the basis that it has no reasonable prospect of success. In particular, during the February 26, 2015 telephone hearing, the applicant was given an opportunity to explain how he could prove his allegation that the respondents reprised against him for claiming or enforcing his rights under the Code and/or discriminated against him based on race, colour, place of origin, ethnic origin, disability and/or age, if the Application were to proceed. In a February 4, 2015 Case Assessment Direction issued prior to the telephone hearing, the applicant was advised that his Application would be dismissed, in whole or in part, if the Tribunal determined that it had no reasonable prospect of success, following the February 26, 2015 hearing.

4During the telephone hearing, I also heard submissions from the parties with respect to whether an allegation that the respondents discriminated against the applicant based on creed fell within the scope of the Application, and, if not, whether the applicant ought to be permitted to amend his Application to include such allegation. I also heard submissions with respect to whether the allegation of creed-based discrimination ought to be dismissed as having no reasonable prospect of success.

5For the reasons that follow, I find that the applicant's allegation that the respondents discriminated against him because of race, colour, place of origin, ethnic origin, disability and/or age has no reasonable prospect of success. These claims are dismissed accordingly.

6However, I cannot conclude at this point that the applicant's claim that the respondents reprised against him for claiming or exercising his rights under the Code has no reasonable prospect of success. In my view, it is appropriate for the Tribunal to hear evidence before determining the applicant's reprisal claim. Nor did a proceeding under the ESA appropriately deal with the substance of the applicant's Code reprisal claim. This aspect of the Application will continue in the Tribunal's process.

7As for the applicant's claim that the respondents harassed and/or discriminated against him because of creed, I am satisfied that this allegation already falls within the scope of the Application before the Tribunal. It is therefore not necessary for the applicant to amend the Application to include this allegation. Like the reprisal claim, I am not persuaded that it would be appropriate to dismiss the creed-based discrimination claim at this stage as having no reasonable prospect of success. It is appropriate for the Tribunal to hear evidence before determining this aspect of the case. It too will continue in the Tribunal's process.

8Finally, I note that, although the Application that was originally filed with the Tribunal alleged discrimination based on "record of offences", this allegation was withdrawn by the applicant at the February 26, 2015 hearing, with leave of the Tribunal and in the absence of any objection by the respondents.

background

9The corporate respondent operates a call centre providing IT services to a number of clients on a 24/7 basis, including statutory holidays.

10The applicant, who self-identifies as a Haitian Canadian, was hired by the corporate respondent as a Bilingual Service Desk Analyst, and commenced employment on or about April 8, 2013.

11The corporate respondent generally requires service desk analysts such as the applicant to be available to work seven days a week. However, at the time of hire, it was agreed that the applicant would not be required to work on Saturdays as an accommodation of his religious beliefs. The applicant indicates that he is Seventh Day Adventist and his creed prevents him from working on Saturdays, which is his Sabbath.

12As noted above, the corporate respondent operates on statutory holidays. The applicant was required to work on the Victoria Day holiday in May 2013. Following this, on May 24, 2013, the applicant wrote to the Service Desk Manager, Ms Renna, requesting, as he had worked the last statutory holiday (i.e. Victoria Day), that he not be scheduled to work on Canada Day, Labour Day or December 25 and 26, 2013.

13Ms Renna responded as follows on May 27, 2013:

Hi Hans

Let's chat when you are in. Everyone is required to work Stat holidays, not everyone however, but we need to support our POS clients. We expect our analysts to work (likely) every other one depending on scheduling/coverage needs etc. Also, we cannot approval (sic) any requests for Christmas off at this time and we will only review before the holiday. Being a newer agent, I cannot promise you Christmas off. When you were hired you were aware that this is a 24/7 service desk and you would need to be available accordingly. As you know we have already made an exception for you regarding Friday night to Saturday nights off.

14The applicant took offence to Ms Renna's reply and in particular the fact that she was bringing up the religious accommodation in response to his request for statutory holidays off. Later that day, on May 27, 2013, the applicant emailed the corporate respondent's human resources co-ordinator, Ms Dobrowolski, raising his concern about Ms Renna's response to him.

15On May 28, 2013, the human resources co-ordinator suggested that she and the applicant meet to discuss "this topic" on May 30, 2013, with Jennifer Perez, a more senior human resources manager. Ms Perez is also named as a personal respondent in this matter.

16The applicant replied that he was willing to meet as proposed in a May 28, 2013 email, which stated in relevant part:

Also I do not get the religious freedom issue correlates with public holiday; why was it mentioned as it was already a part of my accepting this role (if it was not given, I would not have taken this position)...

17A meeting with the applicant did proceed on May 30, 2013, as previously scheduled. However, the public holiday issue was not addressed at that meeting. Rather, the applicant's employment was terminated by the corporate respondent at the May 30, 2013 meeting.

18The respondents allege that the applicant's employment was terminated on May 30, 2013, during his probationary period, solely on the basis of the applicant's work performance. In particular, the respondents maintain that a number of problems with the applicant's work performance came to light in the latter half of May 2013 when the applicant moved from the night shift to the more busy afternoon shift to fill in for another bilingual employee who was off. The respondents allege that, following a number of customer complaints, the applicant had a coaching meeting with Ms Renna on May 23, 2013, which was before the applicant sent his email asking for statutory holidays off. The respondents allege that there continued to be problems with the applicant's work performance following the May 23, 2013 meeting, raised by the applicant's team leaders, and that the decision was made to let the applicant go while he was still in his probationary period.

19For his part, the applicant contends that the termination of his employment on May 30, 2013 constituted a reprisal for claiming or enforcing his right not to be discriminated against because of his creed. It should be noted that, in another proceeding before the Ontario Labour Relations Board, the applicant claimed that his termination was also a reprisal for him exercising his right to public holidays under the ESA. That claim was heard and dismissed by the OLRB in September 2014. This issue is addressed further below.

Analysis and decision

Discrimination on the basis of race, colour, place of origin, ethnic origin, disability, and age

20For the reasons that follow, I find that the applicant has no reasonable prospect of establishing that the respondents discriminated against him because of race, colour, place of origin, ethnic origin, disability or age.

21Although the applicant ticked off the grounds of race, colour, place of origin, ethnic origin, disability and age in the November 21, 2013 Application he filed with the Tribunal, the Application did not contain any particulars of these claims or allege any facts to support these discrimination claims. For example, in explaining why he believed that the respondents had discriminated against him because of race and the related grounds of colour, place of origin and ethnic origin, the applicant wrote only that members of the respondent's managerial staff and human resources department, including the two personal respondents, are "Caucasians" who "seem not to have an understanding or comprehension of the Laws of Canada and Ontario in terms of Religious Liberties, and also that I am a Canadian Citizen, not their dogs or puppets – that I will not be intimidated nor fear whatever the outcomes." In the section of the Application form asking the applicant to explain why he believed he had been discriminated against based on his age, the applicant wrote, "Being a person of 40 years of age, I believe that their statement that I could not do my job even though my previous employments ... proved other wise." As for the applicant's disability discrimination claim, other than identifying that he has sleep apnea, the applicant left the section of the Application form asking him to explain how the respondents had discriminated against him because of disability completely blank.

22Despite the lack of particulars in support of the applicant's discrimination claim in the Application itself, during the February 26, 2015 hearing, I gave the applicant an opportunity to explain how he could prove that the respondents discriminated against him because of race, colour, place of origin, ethnic origin, disability or age.

23By way of response, during the February 26, 2015 hearing, the applicant alleged that the Service Desk Manager, Ms Renna, who is a personal respondent in this matter, sometimes stood over his shoulder watching him work, for no reason. The respondents submit that if this ever occurred it was to provide guidance to the applicant. However, the applicant denies this was the reason. The applicant submits that looking over his shoulder while he was working constituted differential treatment based on his race insofar as Ms Renna never did this to a couple of white employees he worked with. However, the applicant acknowledged that the "white guys" in question were both employed by the corporate respondent "way" longer than him and that one of them was a team leader and the other was the person who trained the applicant on night shift. The applicant also alleges that Ms Renna discriminated against him because of his race when she asked the applicant why he had two phones.

24The day after the telephone hearing, on February 27, 2015, the applicant forwarded an email to the Tribunal which he submits supports his racial discrimination claim. According to the applicant, the June 4, 2013 email is from Mr. H.A., whom the applicant describes as an "African" employee of the corporate respondent. Based on the materials provided, it appears that the applicant emailed Mr. H.A. on June 4, 2013, asking him to confirm that Ms Renna also looked over his shoulder and asked him what he was looking at or watching. Mr. H.A. confirmed, "yes, she did look over my shoulder". However, he also stated that he had "not experience[d] any issues with Metafore" and as such had no "substantive contribution" to make.

25The respondents object to the Tribunal considering the material submitted by the applicant after the hearing had concluded. The respondents submit that the parties had their opportunity to present documents and make arguments before and during the hearing and that the applicant should not be permitted to put additional things forward after the fact.

26In the circumstances, however, it is not necessary for me to address the respondent's objection to the applicant's post-hearing submission. This is because, even with these materials, and leaving aside whether the applicant ought to even be permitted to pursue racial discrimination claims that were not particularized in the Application, I find that the applicant has no reasonable prospect of proving that the respondents discriminated against him because of his race, colour, place of origin, and/or ethnic origin.

27In order to make out his racial discrimination claim, the applicant would have to establish not only that the respondents treated him in a disadvantageous manner but that such disadvantageous treatment was linked to the applicant's race, colour, place of origin and/or ethnic origin. In my view, the facts alleged by the applicant are insufficient to establish such a link.

28Assuming without finding that subjecting the applicant to additional scrutiny by standing over his shoulder could be construed as disadvantageous treatment, the facts alleged that, if proven to be true, would not allow the Tribunal to conclude that such disadvantageous treatment was based on the applicant's race or related grounds. The applicant submits that certain "white guys" he worked with were not subjected to the same treatment. However, he acknowledges that they had been employed with the company for a long time whereas he was still in his probationary period. In the circumstances, I do not think the Tribunal could infer that the treatment in question, if it occurred, was based on race or related grounds. It seems to me that the more reasonable inference to be drawn would be that the applicant was subjected to additional scrutiny because he was new and in his probationary period. Nor do I think that the email from Mr. H.A. assists the applicant. Although the applicant identifies Mr. H.A. as an African who also had Ms Renna look over his shoulder, there is no basis to find that this was based on Mr. H.A.'s race as opposed to another benign factor, such as Mr. H.A.'s length of employment with the respondents. I note that Mr. H.A. himself, in his emails on the issue, denies that he had any issue with the respondents.

29As for the allegation that Ms Renna discriminated against the applicant when she asked him why he had two phones, I find this also has no reasonable prospect of success. I am not convinced that asking such a question could even be construed as disadvantageous treatment, which, as noted above, is one of the requisite elements to make out a discrimination claim. In any event, there are no facts alleged that if true would allow the Tribunal to conclude that such a question was in any way related to the applicant's race, colour, place of origin and/or ethnic origin.

30Nor does the applicant's disability discrimination claim have any reasonable prospect of success. The applicant stated during the summary hearing that he told his supervisor Ms Renna that he had a disability, namely, sleep apnea. However, there is no allegation of differential and disadvantageous treatment linked to such disability and the applicant even acknowledged during the February 2015 telephone hearing that although Ms Renna "might" have done something to him based on that, he could not really say if she had. This allegation is dismissed as well as having no reasonable prospect of success.

31The applicant's allegation of age discrimination was not pursued during the telephone hearing. Nor are the assertions in the Application that the applicant was 40 and could do his job allegations that, if proven to be true, could lead the Tribunal to conclude that the respondents treated the applicant in a differential and disadvantageous manner because of his age. This allegation is also dismissed as having no reasonable prospect of success.

Reprisal Claim

32The respondents contend that the applicant's claim that he was reprised against for claiming or enforcing his rights under the Code ought to be dismissed because the substance of that claim was "appropriately dealt with" in the proceeding under the ESA, within the meaning of s.45.1 of the Code, which states:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules, if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

33As noted above, in addition to filing a human rights Application, the applicant also filed a claim under the ESA alleging, among other things, that the corporate respondent reprised against him for exercising his rights under the ESA. An Employment Standards Officer dismissed the applicant's claim in this regard and the applicant applied to the Ontario Labour Relations Board ("OLRB") for a review of the Employment Standards Officer's decision.

34On September 5, 2014, the OLRB issued a decision, 2014 CanLII 53352 (ONLRB), dismissing the applicant's claim that the corporate respondent had reprised against him for claiming or exercising his rights under the ESA. In the ESA proceeding, there was no dispute that the applicant had emailed a member of the corporate respondent's human resources department, Ms Dobrowolski, about his rights regarding public holidays under the ESA. However, the OLRB found as a matter of fact that Ms Dobrowolski was not involved in the decision to terminate the applicant's employment; and that there was "no reason to think" that the applicant's manager, Ms Renna, "knew at the time she recommended that Felix be terminated that he took the position that what she had told him [in her May 27, 2013 email] did not comply with the [ESA's] requirements vis-à-vis working on public holidays." The OLRB concluded:

In all the circumstances, I do not find that Felix's assertion of a right under the [ESA] or his inquiry about a right under the [ESA] was a factor in Metafore's decision to terminate him.

35However, the OLRB specifically left undetermined whether the applicant's attempt to claim or enforce his Code right to have his religious needs accommodated was a factor in the decision to terminate his employment. At para. 13 of its decision, the OLRB specifically stated that it could "only deal with the question of whether Felix's exercise of rights under this Act [i.e. the ESA] was a factor in his termination" (emphasis in original), and not whether the termination was a reprisal for the applicant claiming or enforcing rights under the Code. The OLRB also stated in its decision, at para. 33:

Felix himself testified that he was more concerned about Renna's adverting in her email of May 27, 2013 to having "accommodated" his Friday/Saturday request, which led him to think she somehow resented the fact that he had made such request and would use it against him. He agreed, however, that is a question that does not arise under the [ESA], but may be addressed in his ongoing complaint before the HRTO.

36In the circumstances, I am not persuaded that all or part of the Application ought to be dismissed under s.45.1 of the Code.

37Recent decisions of the Tribunal have clarified that, in deciding whether an Application ought to be dismissed pursuant to s.45.1 of the Code, the Tribunal must determine whether it would be unfair in all of the circumstances to bar the Code Application on the basis of another proceeding, taking into account the nature of the other proceeding; the applicant's stake in it; and the parties' reasonable expectations about the impact the prior proceeding would have on their broader legal rights, including whether the relevant statutory scheme contemplates parallel proceedings. See Claybourn v. Toronto Police Services Board, 2013 HRTO 1298; McMurter v. Goodyear Canada Inc., 2013 HRTO 1858; K.M. v Kodama, 2014 HRTO 526; Kelly v. Inkas Security Services Ltd., 2014 HRTO 789; Ormesher v. Schwarz Law LLP, 2014 HRTO 1757. The broader policy implications of using the results of another proceeding as a basis to dismiss an Application under the Code is another factor to be considered: see Penner v. Niagara (Regional Police Services Board), 2013 SCC 19; Minott v. O'Shanter Development Company Ltd., 1999 CanLII 3686 (ONCA); Claybourn, above; McMurter, above.

38However, before even getting to the point of considering whether it would be unfair to bar a Code Application based on an earlier proceeding, the Tribunal has to determine whether the earlier proceeding actually dealt with the substance of the human rights Application. Steel v. Johnson Controls Automotive Canada LP, 2014 HRTO 1199.

39In this case, the fact of the matter is that the substance of the human rights Application was not dealt with by the OLRB. In its decision under the ESA, the OLRB confined its analysis to whether the fact that the applicant had claimed or exercised rights under the ESA had been a factor in the decision to terminate his employment. The OLRB did not determine whether the fact that the applicant had claimed or enforced a right to have religious needs accommodated was a factor in the decision to terminate his employment. Nor can I agree with the respondents that the OLRB determined that the applicant's employment was terminated solely based on his performance. The OLRB found that the exercise of the applicant's rights under the ESA was not a factor in the decision to terminate him. However, the decision cannot be read as excluding the possibility of a reprisal under the Code. The respondents' request that the reprisal claim be dismissed under s.45.1 is denied accordingly.

40During the preliminary hearing, I also heard submissions from the parties with respect to whether the applicant's reprisal claim ought to be dismissed on the basis that it has no reasonable prospect of success. Having considered the matter, I am not persuaded that it would be appropriate to dismiss this part of the Application as having no reasonable prospect of success. In my view, the applicant's reprisal claim is more appropriately determined with the benefit of an evidentiary record.

41In coming to this determination, I note that the Tribunal has repeatedly stated that it "is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events. The Tribunal is mindful of the fact that in some cases the application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant's case." (See, for example, Reis v. Mississauga (City), 2013 HRTO 954 at para. 11.)

42The applicant's claim that the respondents terminated his employment as a reprisal for his claiming or enforcing his right not to be discriminated against based on creed will continue in the Tribunal's process.

Discrimination because of Creed

43As noted above, another issue to be determined at the February 26, 2015 hearing was whether the applicant ought to be permitted to pursue the allegation that the respondents discriminated against him based on his creed. I also heard submissions from the parties with respect to whether the applicant's creed-based discrimination claim ought to be dismissed on the basis that it has no reasonable prospect of success.

44The respondents oppose what they contend is a request to amend the Application to include an allegation that the respondents discriminated against the applicant because of creed. The respondents submit that the Tribunal ought to deny such request to amend because it was not made until more than 18 months after the date of the last incident to which the Application relates, namely the termination of the applicant's employment. However, the respondents do not assert that they would be prejudiced if the applicant were permitted to include the ground of "creed" in his Application. On the contrary, during the February 2015 hearing, the respondents stated that they would not be prejudiced because their witnesses would be able to respond to the applicant's allegations, if they were found to be properly part of the Application before the Tribunal.

45Having considered the submissions of the parties and the materials before me, I am satisfied that the allegation that the respondents discriminated against the applicant because of creed is already within the scope of the Application that was filed with the Tribunal in November 2013. It is therefore unnecessary for the applicant to amend his Application to be permitted to pursue the allegation that the respondents discriminated against him because of creed. Although the applicant did not check off the box for "creed" in question 5 of the Application form, there are a number of allegations throughout the Application that the respondents "harassed" the applicant for his religious beliefs by telling him to work on his Sabbath, even though it had been agreed at the time of hiring that the applicant would not be required to work on his Sabbath; by placing the applicant on a shift that "broke" his Sabbath; and by denying the applicant necessary accommodation in the workplace for "religious observance." (See responses to questions 9, A2 and A9 on the Application form.) In the circumstances, although the ground of "creed" was not specifically ticked off on the Application form, I am satisfied that the allegation that the respondents discriminated against the applicant because of his creed is within the scope of the Application that was filed with the Tribunal in November 2013.

46For this reason, as well, the question of delay does not arise. The allegation that the respondents discriminated against the applicant because of creed was not a new allegation raised for the first time at the telephone hearing. It was always part of the applicant's case against the respondent.

47My decision in the above regard is in keeping with the Tribunal's decisions in Haig v. Mount Dennis Medical Group, 2014 HRTO 1345, and Arthur v. Canadian Tire Corporation, 2012 HRTO 1904 at para. 25.

48I now turn to the issue whether the applicant's creed-based discrimination claim ought to be dismissed on the basis that it has no reasonable prospect of success.

49During the February 25, 2015 hearing, I gave the applicant an opportunity to point to the evidence by which he intended to prove that the respondents had discriminated against him because of creed. In addition to Ms Renna's May 27, 2013 email in which she referred to the applicant's religious accommodation, the applicant identified three alleged discriminatory incidents:

1. Not long after he completed his initial training, during the week of April 28, 2013, the applicant alleges that the Service Desk Manager, Ms Renna, asked the applicant to fill in on the Saturday for someone who was going to be off work. The applicant alleges that he told Ms Renna that he could not and she replied "okay" and "let it go".

2. The applicant alleges that after he "recruited" two other employees to work for the corporate respondent, Ms Renna said to him, "We won't bother you with the Sabbath."

3. The applicant alleges that he had agreed to fill in on the afternoon shift for a bilingual employee who was going to be off work for a couple of weeks, starting on or about May 16, 2013. The applicant alleges that he "saw" that the employee for whom he was covering was supposed to work on Saturday. He alleges that he approached Ms Renna and asked if that meant he was supposed to work on Saturday. The applicant alleges that Ms Renna replied "yes", that the applicant had to work the same schedule as the employee he would be filling in for. The applicant alleges that he responded by telling Ms Renna that he could not work on Saturdays because of his creed and that under human rights law he was not required to. The applicant alleges that Ms Renna said nothing and then walked away without acknowledging him and seemed upset when he told her this.

50To clarify, as I understand it, there is no allegation that the respondents actually ever required the applicant to work on his Sabbath. The allegation, rather, is that the respondents discriminated against the applicant by asking the applicant about working on Saturdays, as noted above, and/or saying the above-noted things to the applicant about him working on Saturdays.

51Having carefully considered the matter, I am not persuaded that it would be appropriate to dismiss the applicant's creed-based discrimination claim as having no reasonable prospect of success. In my view, like the applicant's reprisal claim, this part of the Application is more appropriately determined with the benefit of an evidentiary record. This aspect of the Application will continue in the Tribunal's process. It will be for the hearing adjudicator assigned to hear the case on its merits to determine what the Tribunal requires in order to address these allegations, as well as the applicant's reprisal claim.

Next Steps

52In sum, the applicant's claim that the respondents discriminated against him because of race, colour, place of origin, ethnic origin, age, and/or disability is dismissed as having no reasonable prospect of success. The applicant's claim that the respondents reprised against him for claiming or enforcing his rights under the Code, as well as his claim that the respondents discriminated against him because of his creed, will continue in the Tribunal's process.

53I am not seized of this case.