Bradley Kerr v. Collingwood Community Food Co-operative Inc., 2015 HRTO 967

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bradley Kerr

Applicant

-and-

Collingwood Community Food Co-operative Inc.

Respondent

DECISION

Adjudicator: Naomi Overend

Date: July 21, 2015

Citation: 2015 HRTO 967

Indexed as: Kerr v. Collingwood Community Food Co-operative Inc.

APPEARANCES

Bradley Kerr, Applicant

Self-represented

Collingwood Community Food Cooperative Inc., Respondent

Self-represented

Introduction

1The applicant, Bradley Kerr, briefly held paid positions with the respondent, a food cooperative in the Collingwood area. In his Application he alleges that he was discriminated against in employment on the basis of disability, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), when the respondent refused to return him to his former job after he had wrist surgery.

2The respondent states that the applicant’s positions in its store were temporary, that it accommodated his request for assistance after the surgery by bringing in additional volunteers, and that it was the applicant who chose to resign from his store duties.

3For the reasons set out below, I find that the applicant has failed to establish a prima facie case of discrimination.

Factual findings

The Evidence

4The applicant testified on his own behalf. He also submitted a small book of documents, which he provided in advance of the hearing, and a series of annotated emails, which were supplied on the day of the hearing. The respondent called five members of the Board of Directors (the “Board”) in place during the events in question: Stephen Emo, Richard Lex, Krista Voigt, Alison Bond and Aranka Jones. Some of these individuals are still active with the respondent and some have since stepped down. The respondent also provided a book of documents, which includes the minutes of its Board meetings during the relevant period.

5Both the applicant and the respondent’s witnesses supplied detailed witness statements, which they authored and signed. Rather than having them repeat the information, I asked the witnesses to adopt the contents of their respective witness statements. I advised the parties that I would allow the witnesses to supplement their statements, that I would be asking questions to fill in the gaps in their testimony and that they would be given the opportunity to cross-examine each other’s witnesses. No objection was raised to this process. I administered the oath to all six witnesses at the outset to facilitate this process.

6This method of eliciting the evidence resulted in the parties agreeing to many of the facts, although not necessarily what I should infer from those facts. I have made note of any significant disagreement in setting out the facts below.

Background

7In early 2012, the applicant and others formed a steering committee to organize a food cooperative in the Collingwood area. In mid-2012, the steering committee elected an acting Board of Directors (the “acting Board”), on which the applicant was the acting Chair and Treasurer. By mid-December 2012, the respondent opened the store.

8When the respondent first opened its doors, the store was staffed entirely by volunteers, including the applicant. However, by early January, there were two paid positions: a store manager and a part-time position to open and close the store. The minutes of the Board from January 9, 2013 state that the manager’s position was a three-month contract, ending on March 31, 2013. This end-date was chosen to allow the new Board to review the position and make decisions about extending it.

9The part-time position was filled by the applicant. The Board minutes state the following about it:

Because the contract for the store manager does not cover all the hours necessary for operating the store – notably deliveries, and daily set-up and take-down – the co-op needs to take other measures to fill them. There is also a need for back-up in case the store manager cannot be at the store for some reason. It was agreed, as an interim measure only, that a board director with experience of store procedures could best fill this gap; in order for the most knowledgeable board director to do so, he would need to receive some financial compensation for the hours taken away from his livelihood….There was some discussion that some members might view this step as a conflict of interest, but consensus was attained that this is essential and an interim measure only. [Emphasis added.]

10The applicant testified that he worked approximately 13.5-15 hours a week, at $14/hour, in this part-time position for the first three months of 2013.

11In late March, the respondent held an annual general meeting, and a new Board was elected. The applicant was the only person from the acting Board to be elected to the new Board. Initially, he filled the dual roles of President and Chair of the Board. The five witnesses for the respondent were all elected at this time, as were three others.

The Search for Staff

12The Board held its first meeting on April 2, 2013. At that time, it decided not to extend the contract of the existing manager, which had expired on March 31, 2013. The Board approved a motion that the applicant fill the manager’s position on an acting basis, at the same hourly rate as the previous manager.

13Prior to the election of the new Board, a Selection Committee had been struck by the acting Board and had already begun the process of reviewing applications for a new manager. The expectation of the new Board when they asked the applicant to be the acting manager was that a new manager would be hired shortly.

14Indeed, on April 10, 2013, the applicant reported to the Board that the Hiring Committee was recommending a candidate. The Board authorized the hiring of this individual. At the next meeting held on April 16, 2013, the Board authorized the contract of employment for the manager’s position. The successful candidate was then notified, but declined the offer of employment.

15At the May 14, 2013 Board meeting, the applicant reported that there were three persons working at the store in paid positions: two part-time employees and one full-time person. One of the two part-time employees quit in July 2013 because she wanted more hours and was not replaced.

16The full-time person initially commenced work at the store in early May on an eight-week placement program, which subsidized her salary. Ultimately, she was hired as the sole full-time employee of the respondent and remained so as of the date of the hearing. At the time that she started working for the respondent, the Board was still looking to find a permanent manager, but this search was abandoned when a decision was made to hire her on a permanent basis rather than just extend her contract.

17The respondent did not attempt to fill the part-time opening and closing position after the applicant took on the manager’s responsibilities. At the hearing, the respondent’s witnesses explained that when the store first opened, the produce was not in refrigerated display cases, which meant that it had to be moved back and forth between the storeroom (where there were refrigerators) and the store at the beginning and end of each day on which the store was open. This was a time-consuming task. By the summer of 2013, the refrigerated cases were in place. It was the view of the respondent’s witnesses that the need for a dedicated position to perform this function was no longer necessary.

The Applicant’s Surgery and Return to Work

18It was understood at the time that the applicant was made the acting store manager that he was scheduled for wrist surgery on April 23, 2013 as the result of a WSIB injury sustained 11 years earlier. It was initially hoped that the new store manager would be hired by then, but, as noted above, the successful candidate declined the offer and the search resumed. Instead, on April 22, 2013, the respondent’s membership team sent out an email to its members advising them the store would be closed the following day and requesting the following assistance:

Our awesome temporary-Store-Manager and dedicated Board Member, Brad Kerr, has been advised to not lift anything for at least a week. As you can imagine, this will make opening and closing the store each day very difficult…without your help.

Could you volunteer you time to help with either Opening or Closing the store?

19The applicant returned to the store the day after his surgery. He had a cast on his wrist and was precluded from undertaking certain activities. He continued to have restrictions for the remaining two months in which he fulfilled the acting manager responsibilities and was assisted by volunteers, as well as the staff who were hired during this period.

20Following his surgery, the applicant took himself off the payroll, as he was in receipt of WSIB benefits. The respondent’s witnesses testified that the Board was not aware of this and thought the applicant remained a paid employee following his surgery. The applicant disputes this and points to the May 14, 2013 minutes of the Board where it is recorded that “Brad is volunteering all his time while on disability.”

21I accept that the Board was unaware of the applicant’s arrangements concerning his salary until this point. It was a very new Board at the time of the applicant’s surgery, had not been briefed on the finances of the respondent (discussed below) and was generally not in a position to provide much oversight. The applicant, who had been with the respondent since its inception, was given a great deal of latitude in terms of the day-to-day running of the respondent. I also accept that Ms. Voigt’s testimony that she did not know about the applicant’s volunteer status until early June because she was not at the May Board meeting.

22In any event, the applicant worked in a volunteer capacity for the respondent from April 24, 2013 to June 24, 2013, when he resigned from all volunteer activities, save his responsibilities on the respondent’s Board of Directors.

The Breakdown in the Relationship between the Applicant and the Board

23The evidence shows increasing friction between the applicant and the other members of the Board, although it was not entirely clear when the breakdown in the relationship started. The applicant testified that he felt a strain between himself and the newly appointed treasurer, Krista Voigt, from the beginning of her tenure on the new Board (i.e. early April 2013). For her part, Ms. Voigt thought the difficulties arose later.

24In any event, the applicant provided a series of emails dated June 11-20, 2013 which clearly shows escalating tension between him and Ms. Voigt. Initially, the emails deal with whether there is a need to hire another employee. Toward the end of that exchange, the applicant sent an email saying that the respondent was “in the hole” financially and could not afford to create a new paid position to take on the duties being discussed. This, in turn, prompted a series of emails in which the applicant was asked to ensure the updated financial information was provided to the Board members in advance of the June 20, 2013 meeting.

25The applicant worked with the volunteer bookkeeper and was able to provide a copy of the financial information to Ms. Voigt via email the morning of June 20, 2013. Ms. Voigt, in turn sent out an email to the board, criticizing the applicant for what she described as “exclusion” from meetings between the applicant and the bookkeeper. Ms. Voigt said she would be stepping down as treasurer. This prompted the applicant to respond about how hard he worked and how the information he was being asked for (and criticized about) was not properly part of his responsibilities.

26Four days later, on June 24, 2013, the applicant sent an email to the Board announcing he was “stepping down from all responsibilities not related to being the President of the CCFCoop.” That is, he was no longer prepared to volunteer his time for the respondent other than his work on the Board.

27In his witness statement, the applicant states that 2-3 weeks after his surgery, a friend told him that she had overheard the HR Committee of the Board talking about their plan to take over the respondent; and how they intended to use the applicant to train the new employees and then “reduce [his] hours until nothing.” It was this new information that prompted him to write his letter of resignation. The applicant testified about this alleged conversation at the hearing and said it was part of the reason for his resignation. He also said it was because his physical and mental health was deteriorating.

28I do not accept that this allegedly overheard conversation took place as described by the applicant. The applicant did not call the person he said actually overheard this conversation. Moreover, it does not accord with any of the other facts of this case or the timing of his resignation letter. The applicant does not mention it in either his Application or Reply.

29I do not think there was a plot by Board members, commencing in early/mid-May, to use the applicant for his knowledge and then replace him. The applicant asserts that the respondent’s witnesses were all friends prior to being elected to the Board, a fact that is denied by them. In the absence of any proof, I am not prepared to accept the applicant’s assertion or his conjecture that, within six weeks of their being elected, the Board members were conspiring to strip him of his role within the respondent.

30I do not doubt that the applicant felt besieged and underappreciated at the time he submitted his resignation to the Board given the tone of the correspondence from that period. The events that followed no doubt contributed to these feelings.

31The Board held an emergency meeting the night of June 24, 2013 to discuss the applicant’s resignation. After an in-camera portion of the meeting, the Board voted to accept it. The applicant took place in the subsequent conversation about the transition and even made a recommendation to hire the (then) temporary, full-time employee on a permanent basis. At the end of the meeting, Ms. Voigt advised the Board that she would be bringing forward a motion to separate the roles of President and Chair, which were currently being held by the applicant.

32The next day (i.e., June 25, 2013), Richard Lex met with the applicant and demanded that he return his keys to the store. The applicant wrote the following email to him that afternoon:

Hello Rick,

I was unaware of my layoff. I am still technically employed until documentation is given.

Please forward me my reason for and ROE as soon as possible.

Brad

33In August the Board decided to separate the president and chair positions and revoke the applicant’s position as president. On September 2, 2013, the Board voted to revoke the applicant’s position as Chair on the basis that he had had “lost the confidence of the Board.”

34The applicant remained on the Board until October 2013. His resignation on October 9, 2013 was preceded by a series of increasingly heated emails between the parties about his employment status (discussed in detail below). His letter of resignation from the Board, dated October 8, 2013 (but emailed the next day), was accepted by the Board on October 10, 2013.

Interactions between the Parties over the Applicant’s WSIB Claim

35As noted above, the applicant was in receipt of WSIB benefits while recovering from wrist surgery for an injury that had taken place many years before at an unrelated workplace. Since the respondent was not the accident employer, it initially had no dealings with the WSIB regarding the applicant’s time off work.

36The applicant did not formally advise the Board that he was performing his duties on a volunteer basis until the mid-May Board meeting. Indeed, many of the respondent’s witnesses testified that they had not understood that the applicant was “volunteering” rather than working for them after his surgery because he was in receipt of loss of earning benefits from the WSIB.

37On July 14, 2013, approximately three weeks after he tendered his resignation from his store duties, the applicant wrote an email to the HR Committee of the Board (i.e., Krista Voigt, Richard Lex and Stephen Emo) advising them that he been to his doctor, who had given him the okay to return to modified duties. The email further states:

It was suggested that you use me for more of a manager position with no store working like checkout, stocking, delivering, etc. This was just what [the doctor] said to me. Same with the hand therapy program.

You also as the employer do not have to do what they are suggesting you can say you don’t have modified work available, if you don’t.

Also a note the WSIB fully expects that I will return to my position as when I left being full-time and the hours I was doing leading up to the surgery. FYI. You also need to decide what position you are taking on my return to work.

It is up to you to decide what you do. I am just passing this along because this is my duty to the WSIB.

38Ms. Voigt initially responded on behalf of the HR Committee. It would appear that she first spoke to the applicant by telephone and then sent a series of emails dated July 16, 2013, the gist of which was the applicant’s job as store manager had been temporary. The emails reveal a continuing tension between the applicant and Ms. Voigt.

39In an effort to de-escalate the situation, the other members of the Committee, Mr. Emo and Mr. Lex, decided to meet with applicant on July 17, 2015 to discuss what he wanted. The contemporaneous notes of this meeting, as well as the follow-up email to the members of the Committee, sent immediately after the meeting, state that the applicant told them that he had no expectation of returning to work for the respondent and, in fact, did not want to. He further told them that he “had to play the game” with the WSIB in order to maintain his benefits.

40While the applicant now takes the position that the Board had said he could not come back – that it was not prepared to find him a job in which his restrictions could be accommodated – I accept the respondent’s version concerning this pivotal event. The applicant’s evidence was beset with inconsistencies that made him an unreliable witness. Moreover, the respondent’s version of events is supported by contemporaneous notes and an email. It is also consistent with the tenor of applicant’s July 14, 2013 written request; namely, that he was only making it because the WSIB required him to do so.

41Mr. Emo and Mr. Lex told the applicant at this July 17, 2013 meeting that there was no work for him, in light of the financial status of the respondent and the applicant’s previous resignation. This seems to have been confirmed at the Board meeting the following evening. The applicant agreed that he would communicate this decision to his case manager at the WSIB.

42There were no further interactions between the applicant and the Board about his WSIB claim until September 2013. In an email to Stephen Emo, dated September 26, 2013, the applicant asserts that the conversation Mr. Emo had had with his case manager the previous day “put [him] in quite a position” with respect to his WSIB matter. He also asserts that what he is “forced to do now is have MOL, WSIB, Human Rights Tribunal and HRSDC involved to straighten this out.” It would appear that, around this time, the applicant’s WSIB loss of earnings benefits were discontinued.

43The information Mr. Emo and others on behalf of the respondent supplied to the WSIB, at that time and in the days that followed, was that the applicant’s position was temporary, that he continued to do it on a volunteer basis after his surgery and that he resigned in June that year.

44On September 26, 2013, the applicant asked the bookkeeper to change his Record of Employment (“ROE”), which had been issued shortly after his resignation in late June. No ROE had been issued in April, after the applicant had his surgery, as it was not clear to the respondent that there was, in fact, a break in employment (i.e., he had returned to what they thought was paid employment). As noted above, the Board was formally advised of the applicant’s volunteer status at the May 14, 2013 Board meeting, but Ms. Voigt was not aware of this until early June. Likewise, the bookkeeper’s notes reflect that she was not aware that the applicant was not on the payroll until early June when she asked for payroll information from him.

45In any event, at the time of his departure in late June, the applicant asked the respondent to issue a ROE. The respondent’s witnesses recalled the applicant saying that the reason for issuing should be “fired,” but the bookkeeper felt the code for “leave of absence” best reflected the situation and it was that code that was used on the form issued on June 28, 2013.

46The applicant did not dispute his ROE at the time, but, when the difficulties with the WSIB arose in late September, asked that the reason for issuing be amended to “illness or injury.” The respondent acquiesced and on October 4, 2013 reissued the ROE to reflect this change. Both ROEs stated that the applicant’s last day of work was April 22, 2013, which is last day for which he was paid.

Discussion and Analysis

47Section 8 of the Application succinctly states the basis for the applicant’s claim that he was discriminated against on the basis of his disability:

On April 22, 2013 I worked my last day before my WSIB approved surgery under another employer. In August I was approved by my surgeon to return to work with lifting restrictions up to 20 lbs until Nov 2013 when the next assessment will be. I met with the CCFC HR committee members Rick Lex and Stephen Emo and explained the situation and requested to return to work. They agree and said the HR committee will meet and get back to me. To date I have no response. WSIB tells me they are not willing to take me back. The HR committee say’s its because of my restrictions. The board of the CCFC has hired another employee or two since I have requested to return to work and they are doing work within my restrictions. As far as I am aware if there was a job opening they have to take me back. This is my issue.

48In order to prove this claim, the applicant must demonstrate that: (1) there was a position to which he was entitled to return to when his WSIB leave was complete; and (2) that the reason he was not returned to this position was because he had a disability and/or took a disability-related leave of absence.

Was there a position to which the applicant was entitled to return?

49Before I am able to address this issue, I need to ascertain what position the applicant asserts he was prevented from returning to. That is, does the applicant believe he should have been returned to the manager’s position or the part-time position he formerly held? There was some discrepancy between the applicant’s pleadings, the documentary evidence and his testimony on this issue.

50In Form 1A to his Application, the applicant states in response to the question “What was the position or job where you felt there was discrimination?”, “I was the Acting Manager at the time.” He also made a claim for six-months of wage loss at what would have been his salary had he been the manager. This strongly suggests he believed he ought to have been returned to that position.

51In his Reply, the applicant states that the respondent exploited him by prolonging the search for the manager, while he volunteered his services in that role. He also states that he had not agreed to take on the position of Acting Manager beyond one or two weeks “as it was to be temporary and [he] was to return to [his] part-time job when a new store manager was hired before [he] went for surgery.” This suggests that he believes the job to which he was entitled was the part-time opening and closing position.

52The applicant submitted a decision made by a Vice-Chair of the Ontario Labour Relations Board (“OLRB”), in an application for review of a refusal to issue an Order to Pay brought pursuant to s. 116 of the Employment Standards Act, 2000, c.41, as amended. The applicant was successful before the OLRB and the respondent, which did not participate in the proceedings, was ordered to pay one week’s termination pay of $1,100. This reflects the pay he would have received in his role as “store assistant and acting store manager.”

53In final argument, I asked the applicant to clarify what the position he believed he should have been returned to, and he indicated the opening and closing (i.e., part-time) position.

54The difficulty with the applicant’s position is that the only reference to the part-time position in the Board minutes was that it was a temporary position. The minutes also reflect the Board’s apparent concern that there was an inherent conflict of interest in hiring the applicant, who was then acting Chair and Treasurer on the Board of the respondent. In other words, there was ambivalence about hiring the applicant, and it was only done at the time because he was the best person to undertake the duties. Nothing transpired subsequently to suggest that the applicant was entitled to any part-time work which the respondent happened to create.

55The parties agreed that a significant part of this job was to move the produce every morning and evening between the storeroom and the store itself. The applicant did not refute the respondent’s evidence that this part of the job was eliminated when the respondent purchased refrigerated display cases in May 2013. That is, long before the applicant would have been physically able to do the duties of that position, it was made redundant.

56As for the manager’s position, the Board minutes make it amply clear that the applicant was only holding that position on a temporary basis, while the respondent made the arrangements to hire another individual. The documents are consistent that, even as the job search became more protracted than originally anticipated, the applicant was only temporarily filling this job. Indeed, the applicant was an active participant in the search for the new manager. Significantly, at the emergency Board meeting held the night he tendered his resignation, the applicant recommended the respondent hire the person who was then working temporarily on a “permanent basis.” This hiring eventually took place and the individual took over the manager’s job.

57The evidence reveals that there was a great deal of fluidity in the staffing situation. It was clear that the respondent needed a manager, but with respect to the other staffing requirements, these seem to change over time. Moreover, the respondent’s precarious financial situation necessitated certain compromises in the way in which the store was run, and what role volunteers played in the staffing. The evidence does not support the applicant’s position that there was a job that he was entitled to fill on a permanent, or even long-term, basis.

Was the applicant denied continued employment because of his disability?

58Given that the applicant had no entitlement to paid employment with the respondent, it is not, strictly speaking, necessary to assess why the Board did not acquiesce to his apparent request to return to modified duties in July 2013. However, it helpful to address this issue in light of the inter-connection between it and the first issue.

59I have found as a fact that the applicant’s July 14, 2013 email was not a bona fide request to return to work, but something done for the sake of appeasing the WSIB. As noted above, I accept that the applicant told two of the respondent’s Board members that he was just playing the “WSIB game.”

60It is significant that the applicant was, in fact, doing the work he suggests he could return to in the July 14, 2013 email, as early as the day after his surgery. As far as the respondent was concerned, the applicant was able to do many of the essential duties of the manager’s position, and had arranged for volunteers and staff to assist him with the more physically demanding aspects of the work. Moreover, I have found that the Board believed the respondent was continuing to pay the applicant to do this work, and only subsequently learned that he had removed himself from the payroll.

61The applicant complains that the manager the respondent permanently hired (at his recommendation) subsequently went on to have surgery herself and was accommodated by the respondent. Rather than proving that he was discriminated against, this conduct suggests a pattern of accommodating employees by the respondent.

62The respondent further states that it was the applicant who resigned from his temporary work, rather than being terminated. The applicant points out, quite rightly, that his letter of resignation specified that he was resigning from his “volunteer store duties.” If read carefully, the letter does state that he was leaving open his option to return to his “old position” once he received medical clearance.

63I accept that the respondent believed the applicant was resigning from his duties at the store, even if that was not the applicant’s original intent. This belief was cemented when the Board met with the applicant the evening he tendered this resignation letter and by his demand the next day for documentation confirming the end of his employment. It is not surprising that they were taken aback when, three weeks later, the applicant appeared to be asking to be returned to the same modified work he had been doing when he submitted his resignation.

64In any event, by this stage, the relationship between the applicant and respondent was poisoned by mistrust on both sides. The applicant believed there was a conspiracy to strip him of his leadership role with the respondent, and the Board members believed that the applicant was withholding information from them. Even if the respondent had had the financial wherewithal to return the applicant to a paid position, it did not consider this option for reasons unrelated to the Code.

65For all of the above reasons, the applicant has failed to make out a prima facie case of discrimination on the basis of disability. The Application is, accordingly, dismissed.