HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Hans Felix
Applicant
-and-
Metafore IT Solutions Hartco, Jennifer Perez and Roberta Renna
Respondents
DECISION
Adjudicator: Brian Cook
Indexed as: Felix v. Metafore IT Solutions Hartco
APPEARANCES
Hans Felix, Applicant
Self-represented
Metafore IT Solutions Hartco, Jennifer Perez, and Roberta Renna, Respondents
Philip Graham, Counsel
1This Application alleges reprisal and discrimination with respect to employment because of creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The corporate respondent provides IT support to clients. It employs agents who take calls from clients and provide telephone IT support. The applicant was employed by the corporate respondent from April 8, 2013 to May 30, 2013. When he was hired, he advised that he is a member of the Seventh Day Adventist Church and that his creed requires that he not work on the Sabbath, which he said started at sundown on Friday, and lasted until sundown on Saturday. The applicant alleges that during his employment he was asked to work on Saturdays. He alleges that his employment was terminated when he complained about this and asserted his need for accommodation on the basis of creed. He alleges that he therefore experienced discrimination because of creed and that the respondents reprised against him when he tried to assert his Code-protected rights.
3In the Application, the applicant also alleged discrimination because of race, colour, place of origin, ethnic origin, disability, age and record of offences. In Interim Decision 2015 HRTO 694, those allegations were dismissed as having no reasonable prospect of success.
4The respondents deny the allegations of discrimination. The respondents assert that the applicant’s employment was terminated during the applicant’s probation period because of serious performance issues. The respondents also ask the Tribunal to find that the applicant is a vexatious litigant.
5The Application was heard on August 26, 2016. I heard the evidence of the applicant and Roberta Renna, one of the personal respondents.
6After hearing this evidence, the respondent’s counsel asked that the Application be dismissed as having no reasonable prospect of success. The applicant opposed the motion. He submitted that the hearing should continue so that I could hear from other witnesses, including two witnesses he intended to call who he said would confirm that Ms. Renna harassed him about working on Saturdays.
7I advised that I would consider the respondent’s request. If I agreed that the Application should be dismissed as having no reasonable prospect of success, I would issue a Decision dismissing the Application on that basis. If I determined that the Application should not be dismissed on that basis, I would issue further directions for re-scheduling the hearing.
8For the reasons that follow, I find that the Application must be dismissed as having no reasonable prospect of success. I further find that the applicant should be declared a vexatious litigant for the purposes of proceedings at this Tribunal.
The respondents to the Application
9In advance of the hearing, the applicant asked to amend the Application to add additional corporate respondents. The applicant stated that he has learned that the named corporate respondent was purchased by another company and that the named corporate respondent no longer exists. The applicant agreed that the purchase occurred after the events relevant to this Application.
10Mr. Graham confirmed that he is counsel for Metafore Technologies Inc./Hartco Inc. (“Metafore”) and the personal respondents. He said that Metafore does continue to exist.
11The applicant said that he also wanted to add another corporate respondent for whom he was working after the events relevant to this Application. He said that this respondent terminated his employment when he asked for a day off to attend a hearing at the Ontario Labour Relations Board. Metafore was the respondent to that hearing which concerned the applicant’s allegation that his employment had been terminated because he asserted his rights under the Employment Standards Act. That claim was dismissed by the OLRB. The applicant indicated that he has filed an Application with this Tribunal against this proposed corporate respondent.
12The applicant said that he wanted to add a third corporate respondent who interviewed him for a job but did not hire him. He said that he thinks the reason he was not hired is that someone from this company recognized him from his work at Metafore. He indicated that he has not filed an Application against this company.
13The applicant first raised his requests to add these additional respondents in emails to the Tribunal. He was told by the Registrar that he needed to file a Request for Order During Proceedings if he wanted to add respondents. He did not do so but did raise the matter again at the outset of the hearing.
14After hearing submissions from the parties, I determined that it was not appropriate to add respondents. It does not appear that any of the proposed respondents had anything to do with the events giving rise to the Application. Finally, the applicant, who is certainly no stranger to the Tribunal’s rules and procedures failed to follow the direction he was given.
Background facts and allegations
15The applicant was employed by the corporate respondent from April 8, 2013 to May 30, 2013.
16The applicant identifies as a member of the Seventh Day Adventist church. The Sabbath starts at sundown on Fridays. On Saturdays, church members attend church in the morning.
17The applicant has provided different information at different times about when the Sabbath ends. He initially told the respondents that the Sabbath continues to sundown on Saturday. However, at the hearing, he said that Sabbath lasts to the end of the Church service on Saturday morning.
18In this Application, the applicant alleges that he was clear that because of creed he could not work on Saturdays but that nevertheless, the personal respondent Ms. Renna frequently asked him to work on Saturdays. He does agree that he was never required to work on a Saturday.
19Ms. Renna’s evidence is that she never asked the applicant to work on any Saturday.
20The applicant testified that he was initially interviewed by an outside recruiter. He testified that he said during that interview that he could not work during the Sabbath and he was told that was fine. He testified that he was then interviewed by Ms. Renna and a person from human resources. He said that he advised in that interview again that he could not work on the Sabbath and was told that this could be accommodated.
21Ms. Renna did not recall that the applicant was interviewed by an outside recruiter although she said this was possible. She agrees that she interviewed the applicant and that at that time he indicated that he could not work on his Sabbath and that she said that could be accommodated.
22In my view, nothing turns on whether the applicant was first interviewed by an outside recruiter.
23After starting work on April 8, the applicant spent the first few weeks of employment in training. This occurred from Monday to Friday so there were no issues about weekends.
24After training, he was assigned to a night shift, working from midnight to 9 am. This did not require him to work on the Sabbath.
25In approximately mid-May, the applicant was asked if he would change shifts to cover another worker who was going on vacation for one month. That shift was from 3:00 pm to 11:00 pm, from Monday to Friday. It therefore involved work on Friday evenings.
26The person who was responsible for training was David Simerson. Mr. Simerson was the person who asked the applicant to cover the afternoon shift. He did so in an email dated April 24, 2013. The email set out the hours and stated:
I know you would be unable to work this late on Fridays, but would you be able to work that shift the other days of the week for 3 weeks?
27The applicant sent a reply email which said:
Yes, but of course – no problem.
28A few minutes later, he sent another email that said:
I can work late on these Fridays (I will start the prayers at work – just to help out)…
29When asked about this at the hearing, the applicant explained that the Sabbath obligations involve prayer on Fridays after sundown. On Saturday morning, the obligation is to attend Church.
30The applicant was asked about this shift change in cross-examination. He was referred to Interim Decision 2015 HRTO 694, dated May 27, 2015. This Interim Decision dealt with the question of whether the Application should be dismissed in whole or in part as having no reasonable prospect of success. The allegations of discrimination because of race, colour, place of origin, ethnic origin, disability, age and record of offences were dismissed on that basis. The Interim Decision did not dismiss the allegation of discrimination because of creed and the allegation of reprisal.
31According to the decision, the Vice-chair asked the applicant to point to the evidence by which he intended to show that the respondents discriminated against him because of creed. At paragraph 49 of the Interim Decision, the following was recorded:
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.
32At the hearing before me, the applicant was asked about this. He agreed that the employee he was covering for did not work on Saturdays and that covering his shift would therefore not involve work on a Saturday.
33The applicant testified that what happened is that there was a discussion on the morning of April 25, involving Ms. Renna and Mr. Simerson and that it was during this conversation that Ms. Renna told him that covering the shift would require him to work on Saturdays.
34I note that the hours associated with the shift were understood by the applicant from the emails with Mr. Simerson the night before. There is no apparent reason why Ms. Renna would tell the applicant something different the next morning.
35In regard to the shift change, Ms. Renna testified that this was resolved entirely by the emails between the applicant and Mr. Simerson. She was not involved, and there was no reason why she would have become involved.
36As noted, the applicant states that if the Application is not dismissed, he will call two witnesses who he says witnessed Ms. Renna ask the applicant about working on Saturdays.
Emails about statutory holidays
37On May 24, 2013, the applicant sent an email to Ms. Renna concerning statutory holidays. The applicant had been required to work on the Victoria Day holiday Monday. The subject line of the email included the dates of the remaining statutory holidays in 2013. In the email the applicant said:
Just wanted to ask those holidays off as I wanted to spend time with my family. I worked on this past holiday, so I wanted the following one off. Thank you.
38In her reply email Ms. Renna said:
Let’s chat when you are in. Everyone is required to work Stat holidays, not every one 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 [approve] 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.
39The applicant believes that Ms. Renna’s reference to the accommodation that had been made concerning his creed in this answer to his question about statutory holidays is evidence of discrimination on the basis of creed. He alleges that the comment also shows reprisal because it suggests that he will be required to work more statutory holidays than others because of the accommodation of creed.
40On May 27, 2013, the applicant sent an email to the Human Resources Coordinator about this. His email included an extract from the Employment Standards Act and a draft of an email to Ms. Renna and Mr. Simerson in which he discussed his rights under the Charter of Rights and Freedoms and objected to being required to work “on all weekends, on all holidays.”
41This issue was not pursued further because on May 30, 2013, the applicant’s employment was terminated.
42The applicant subsequently filed a complaint with the Ministry of Labour, alleging that his employment was terminated because he had raised concerns about his rights under the Employment Standards Act. An Employment Standards Officer dismissed that complaint, finding that “the employer had compelling business reasons for terminating the employee” based on performance issues and that his email about statutory holidays was not a factor. The applicant appealed that decision to the Ontario Labour Relations Board. In a decision dated September 5, 2014, the Board dismissed the applicant’s appeal on that issue, although the Board found that the applicant was owed $204.48 in unpaid wages. The Board stated in its decision that it made no finding on the question of whether the applicant had experienced reprisal for having raised his rights under the Code.
Performance issues
43The performance issues arose when the applicant started on the afternoon shift. The respondents do not assert that there were any significant performance issues during the training period or the period when the applicant worked the night shift. However, they assert that significant problems arose as soon as the applicant started on the afternoon shift on May 16, 2013.
44A “coaching session” occurred on May 23, during which Ms. Renna and another supervisor reviewed with the applicant “recent complaints from clients regarding tickets that you opened these last few weeks.” The complaints and the guidance provided to the applicant were outlined in an email from Ms. Renna dated May 24, 2013, which read as follows:
Hi Hans,
I wanted to follow up regarding the coaching session that Annette and I had with you yesterday.
Further to our meeting below is what we discussed:
We indicated that we are concerned with your performance lately. We have had several recent complaints from clients regarding tickets that you opened these last few weeks (Annette reviewed them with you and has a list). We understand that part the challenge was that you were working the 12:30am - 9:00am shift and did not experience a high call volume.
Going forward please refer to the existing Knowledge Base in the Z:drive for customer specific procedures
If you cannot find a procedure in the KB (please make a note of it so we can update it), please escalate to Dale for M&M, to other analysts and if necessary to David Simerson.
Please also ensure when you are documenting tickets that you use bullet points when updating the notes, eliminating spelling errors and follow proper troubleshooting processes.
We also asked you to please open tickets when you get the call, answer the voicemail, or pick up the email. Under no circumstances do you ask the client to try something (i.e. reboot) and call you back. You are to stay on the phone with them while they are following the troubleshooting steps.
You were asked to set up a meeting with Dale for Monday to review the M&M account at 3:00.
We will have a follow up meeting on June 4th to review your new cheat sheet that will help you get to client resolutions quicker.
Thank you Hans for being open to the coaching and for working towards improved performance. We believe in you and know you can do it!
45Another coaching session occurred on May 29. The main issue at that time was that the applicant had sent notes concerning one client to another client, which was characterized as a serious error. According to Ms. Renna’s email, review of the notes revealed a number of “small mistakes” which she attributed to a failure to attend to detail.
46On May 30, 2013, one of the applicant's supervisors sent Ms. Renna an email expressing concerns about the applicant’s attitude. She indicated that the applicant did not appear to learn from his mistakes and instead tried to defend his actions. The supervisor sent another email later that day about a complaint from a client about the applicant. On the same day, Mr. Simerson sent an email to Ms. Renna about unauthorized computer applications the applicant had installed on his work computer. The most serious concern was about a backup application that would allow the applicant to store data from his work computer on a private backup system or cloud.
47Ms. Renna testified that by May 30, she decided that the applicant’s employment should be terminated. She did not have authority to do this but she wrote an email to Jennifer Perez, who was the senior human resources person in the Toronto office. Ms. Perez also did not have authority to make the decision either, but supported Ms. Renna’s recommendation to Claude Cornellier who was at the Head Office. He agreed with the termination recommendation.
48Ms. Renna testified that her recommendation to terminate the applicant’s employment was based entirely on performance issues and had nothing to do with any Code-related issues. She testified that after her email exchange with the applicant about working on statutory holiday days she did not hear anything more about the issue and was not aware that the applicant had contacted human resources about his complaint.
49In his evidence, the applicant agreed that he made some errors in his work. However, he did not agree that they were serious. In his view, any errors he did make were entirely attributable to the fact that he had not been properly trained. He agreed that he had initially worked with the person he was covering for but felt that he was not sufficiently trained on all of the accounts.
50Ms. Perez testified that the applicant only raised a lack of training as an excuse for his errors shortly before the termination of his employment. She testified that she did not understand why the applicant felt he had not had sufficient training. The primary tool for the agents was an electronic manual which explained all the procedures for the various accounts. She said that if the applicant had raised a lack of training at the time, his training needs would have been assessed. She testified that when the applicant did raise training as an issue, she did not agree that the applicant's errors were related to a lack of training.
The applicant’s creed based needs
51The applicant alleges that he experienced discrimination and harassment because of creed. He alleges that he identified the need for accommodation in regard to not working on the Sabbath when he was hired. He indicated that he considered this issue to be essentially a part of his employment contract. He said he would not have taken the job without the assurance that he would not have to work on the Sabbath.
52I note that there is some question about what the applicant’s creed-related needs actually were. He testified that when he started employment, he explained that because of his creed he was not available to work for the Sabbath period, which he identified as starting at sundown on Friday and ending on sundown on Saturday. This was also the Sabbath period that he identified at the outset of his testimony at the hearing.
53In the email exchange with Mr. Simerson about changing shifts, Mr. Simerson acknowledged being aware that the applicant was not available to work on Friday evenings but asked if the applicant could work on the other shifts. The applicant immediately volunteered that he could work on Friday evening. In his testimony, he indicated that the creed-related need in regard to Fridays concerns praying which does not necessarily conflict with working on Friday evenings. The applicant’s evidence is that he volunteered to work on the Friday evening shift to demonstrate his willingness to co-operate. Accepting this is true, it nevertheless raises a question about what the applicant’s needs actually were.
54Although the applicant initially gave the respondents the impression that his creed-based needs extended to Saturday at sundown, according to his testimony, he later told Ms. Renna that he could work on Saturday afternoons and was only unavailable on Saturday mornings because he had to attend Church.
55On April 16, 2013, a manager asked the applicant about his availability and asked “Do you work on the weekend at all?” The applicant responded “nope”. If the applicant did not wish to work on the weekend at all, it appears that the only time on the weekend that was affected by his creed-based needs was Saturday morning.
56The applicant agrees that he was never required to work on a Saturday.
When did Ms. Renna allegedly ask the applicant about working on Saturdays?
57Ms. Renna testified that she never asked the applicant to work on Saturdays. She said that from time to time she might come into the general area where the agents were working and make a general request for volunteers to work on the weekends. However, she said that she never made such a request only to the applicant.
58The applicant's evidence about this allegation is very inconsistent. In his testimony, he initially said that Ms. Renna “constantly” asked him about working on Saturdays. This is also what he said in the Application. In his testimony, he later said that she asked him at least eight times. Later still, he indicated that she asked him two or three times.
59The applicant initially indicated that these requests were made throughout the period of his employment. He later clarified that there were no requests during the time he was on the night shift as he did not have any communication with Ms. Renna during this period. However, he maintained that Ms. Renna asked him about working on Saturdays during the training period and that she started again when he started covering the day shift.
60The applicant testified that he recommended some acquaintances to Ms. Renna as bilingual IT trained people who would be available to work on Saturdays. He said he did this so she would stop pressuring him to work on Saturdays. Two people were hired but their employment did not last very long.
61During the hearing, the applicant advised that he wanted to call two witnesses who would testify that they heard Ms. Renna ask the applicant to work on Saturdays. These witnesses had not been previously identified by the applicant. In the original Application, he identified a number of potential witnesses but the list did not include the potential witnesses mentioned at the hearing. The brief information provided in the Application about the potential witnesses did not include any suggestion that any of them heard Ms. Renna ask the applicant to work on Saturdays. The applicant provided a later longer list of potential witnesses at the time he said he wanted to amend the Application. None of these included the witnesses identified at the hearing. There was no suggestion that any of the witnesses who were identified would testify that they heard Ms. Renna ask the applicant to work on Saturdays.
Should the hearing continue?
62As noted, the respondent submitted that after hearing the evidence of the applicant and Ms. Renna, the Application should be dismissed as having no reasonable prospect of success without hearing from further witnesses.
Summary of the allegations of discrimination and harassment and reprisal
63The applicant’s allegations boil down to the following:
That he was harassed by Ms. Renna because she frequently asked him to work on Saturdays. She knew that he needed to not work on Saturday mornings because of his creed. Her comments were therefore vexatious and were known to be unwelcome. The applicant concedes that there is no basis for an allegation that he was discriminated against on the grounds of creed in regard to working on Saturdays as he was never scheduled to work on a Saturday.
That Ms. Renna threatened to make him work on more future statutory holidays than other employees. This was allegedly a reprisal for his having made the creed-based accommodation request.
That his employment was terminated because he had refused to work on Saturdays and in reprisal for the fact that he raised his Code-right to accommodation for creed.
Was the applicant harassed?
64“Harassment” is defined in section 10 of the Code:
“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
65Ms. Renna denies the allegation that she frequently asked the applicant to work on Saturdays. It is therefore necessary to consider the relative credibility of the applicant and Ms. Renna. It is also necessary to consider whether the evidence of any other witness would provide further support for the applicant.
66In assessing credibility, I have applied the principles set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At pages 356-357, the British Columbia Court of Appeal stated:
…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
67Other factors for assessing credibility include the witness’s motives, the witness’s relationship to the parties, the internal consistency of their evidence, and inconsistencies and contradiction in relation to other witnesses’ evidence: Cugliari v. Telefficiency Corporation, 2006 HRTO 7.
Depending on the circumstances, some portions of a witness’ testimony may be more credible or worthy of belief than other portions. Accordingly, I can, with good reason, accept all, some or none of any witness’ evidence: see R. v. R.E.M., 2008 SCC 51, 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65.
68Having heard the testimony of the applicant and Ms. Renna, I find that that the applicant’s evidence about his allegation of harassment is not credible and the evidence of Ms. Renna is credible for the following reasons.
69First, the applicant provided inconsistent evidence about how often Ms. Renna allegedly asked him to work on Saturdays. He said that this happened constantly and then said it happened at least two or three times. He initially said that it happened throughout his employment but then agreed that it did not happen during the time he was on the night shift.
70Second, the applicant’s allegation with respect to the fact that he “saw” the person he was going to cover for worked on Saturdays and that Ms. Renna confirmed that he would be required to work on Saturdays could not have been possible because the schedule of the person he was covering for did not work on Saturdays. It appears that the applicant may have misled the Tribunal when he identified this as an allegation supporting his allegations of creed-based discrimination and harassment to the Vice-chair in Interim Decision 2015 HRTO 694.
71Third, as discussed earlier, the hours involved in the job were clearly established in the emails between him and Mr. Simerson. The applicant’s suggestion that Ms. Renna told him the next day that he would have to work on Saturdays in order to do the job makes no sense because the job did not involve working on Saturdays and the hours of work had been resolved by the person responsible for scheduling.
72Ms. Renna’s evidence that she did not ask the applicant to work on Saturdays was consistent and straightforward. Ms. Renna agreed that she may have asked the agents as a whole if someone was available to work on Saturdays. It is possible that the applicant construed this as a request that he work on Saturdays but this does not mean that he was in fact personally asked to work on Saturdays. The evidence supports Ms. Renna’s testimony that it was Mr. Simerson who made the scheduling arrangements. The evidence further shows that Mr. Simerson respected the applicant's creed-based needs. When he contacted the applicant about covering the day shift, he started by saying that he understood that the applicant could not work on Friday evenings. This was because the applicant had indicated that he could not work on Friday evenings, even though it appears that his creed-based needs did not in fact preclude working on Friday evenings. The fact that Mr. Simerson, who was responsible for scheduling, did not ask the applicant to work on Saturdays and acknowledged the applicant’s creed-based needs is not consistent with the allegation that Ms. Renna would ask the applicant to work on Saturdays.
73Further, Ms. Renna’s email of May 24, 2013, discussed below in relation to the allegation of a threat of reprisal, states: “As you know we have already made an exception for you regarding Friday night to Saturday nights off”. Leaving for the moment whether this could be construed as a threat to reprise, it demonstrates that Ms. Renna understood that the applicant required accommodation in regard to his Sabbath and supports the fact that she would not have frequently asked the applicant to work on Saturdays.
74I have considered the fact that the applicant said at the hearing that, if the hearing were to proceed, he would call two witnesses who would verify that Ms. Renna asked him to work on Saturdays. However, the existence of these witnesses was disclosed only during cross-examination of the applicant and that they were not mentioned on the occasions before the hearing that the applicant indicated who his intended witnesses would be. The failure to identify witnesses on an issue that the applicant had identified as a key component of his allegations could not be excused because of a lack of familiarity with the Tribunal’s rules and expectations. As discussed below, the applicant is a person who has filed a large number of Applications and is very familiar with the Tribunal’s processes and rules. Given that there was no mention of these witnesses, the applicant would not have been permitted to call them as this would result in delay and unfairness to the respondents.
75I would not therefore have heard more substantive evidence on this issue than the evidence provided by the applicant and Ms. Renna that I heard.
76I conclude that the applicant’s evidence on this issue is inconsistent and unreliable and not sufficient to support an allegation that Ms. Renna harassed him by asking him to work on Saturdays. This allegation is therefore dismissed as having no reasonable prospect of success.
Did Ms. Renna reprise or threaten to reprise against the applicant in regard to statutory holidays?
77Section 8 of the Code provides as follows:
- 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.
78Noble v. York University, 2010 HRTO 878 is a decision of the Tribunal that set out the principles to be considered when adjudicating an allegation of reprisal:
[I]n a complaint or application alleging reprisal, the following elements must be established:
a. An action taken against, or threat made to, the complainant;
b. The alleged action or threat is related to the complainant 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.
79In order to prove reprisal, an applicant must establish that the respondent engaged in an action, or threat, which was intended as a retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the complainant must establish that the action was taken with an intent to punish or retaliate.
80The basis for this allegation is the email that Ms. Renna sent to the applicant in reply to his email to her about working on statutory holidays. The applicant’s email was somewhat ambiguous, suggesting either that he did not want to work on the next statutory holiday, or that he did not want to work any further statutory holidays.
81Ms. Renna’s response included the statement: “As you know we have already made an exception for you regarding Friday night to Saturday nights off” and the applicant suggests that this meant he would be required to work more statutory holidays than others because of the accommodation of creed he received. He alleges that this constitutes reprisal.
82In another context, Ms. Renna’s comment could possibly be construed as an implied threat in the manner suggested by the applicant. However, it was not an actual threat to treat the applicant differently in respect of assignment of statutory holidays.
83In the actual context of the email, Ms. Renna was responding to an email from an employee who had been employed for less than two months who seemed to be objecting to having been assigned to work on a statutory holiday and who was possibly asking to not work on future statutory holiday days. It was known to everybody that the business operated on a “24/7” basis to meet the needs of its clients, and the applicant fully understood this when he was hired. Ms. Renna responded with information about scheduling on statutory holidays and, in particular, advised him that there were significant pressures around the Christmas period.
84Further, the applicant was a newly hired employee who was still in his probation period and who knew that the respondent operated on a 24/7 basis. As well, by the time of this email exchange, the applicant knew there were concerns about his performance, even if he did not think they were justified.
85Ms. Renna testified that many agents make scheduling requests for all sorts of reasons, including Code-related needs. She testified that the relative needs and requests of everybody, along with factors such as seniority, are all part of the scheduling considerations.
86In this context, I find that the factually correct statement that the applicant’s creed based accommodations had been granted was not a threat or even an implied threat to do anything because the applicant had asked for accommodation of his creed-based needs.
87In my view, the fact that Ms. Renna mentioned that the respondents had accommodated the applicant’s professed creed-based needs is not evidence of reprisal or a threat to reprise. This allegation is dismissed as having no reasonable prospect of success.
The termination of the applicant’s employment
88In my view, there is overwhelming evidence that the applicant’s employment was terminated because of performance issues. While the applicant may believe that the errors he made were inconsequential, it is apparent that the respondents did not agree.
89By the time the respondent discovered that the applicant had installed software on his computer that would allow him to extract information and data, the respondents had documented significant performance issues. Numerous performance issues were noted and brought to the applicant’s attention. The performance issues included a failure to learn from mistakes, which was possibly related to the applicant’s view that the errors he made were not significant.
90The applicant’s belief that the errors that were identified were of a minor nature is not consistent with the available evidence which show that while some of the errors were minor in nature others were not. The applicant does not dispute that he did not ask for additional training but believes that the need for training should have been obvious.
91In fact, the available documents show that the applicant was shown how to do things but still seemed to have difficulties. An email to Ms. Renna from the applicant’s supervisor dated May 30, 2013 (the morning of the day when the termination decision was confirmed) indicates that she had just explained the basic procedures to the applicant for the third time. She indicated: “While his ticket QA has improved since we had the discussion with him last week he is still not following proper procedure. He doesn’t ask for help when he might not be clear about an issue and doesn’t take responsibility for errors he commits.”
92The applicant alleges that the termination of his employment was a reprisal for the fact that he had raised concerns about Ms. Renna’s May 24, 2013 email about working on statutory holidays and her comment that the applicant had been accommodated for his creed-based needs.
93The evidence shows that Ms. Renna had no knowledge that the applicant had raised any concerns about her May 24, 2013 email at the time she started the process to recommend that the applicant be terminated. The evidence also shows that Mr. Cornellier, who had the authority to make the decision also knew nothing about the applicant's complaints about the email or anything else apart from the performance issues.
94The allegation that the termination was influenced by reprisal contrary to section 8 of the Code is dismissed as having no reasonable prospect of success.
95There is also no evidence to support the applicant’s allegation that the termination of his employment had anything to do with the fact that he had creed-based needs and had asked for accommodation on that basis. This is really just an assertion by the applicant. The only thing that might support this assertion would be if it were true that Ms. Renna frequently asked the applicant to work on Saturdays. However, I have found that did not happen.
96The allegation that the applicant’s employment was terminated because he was not available to work on Saturday mornings because of his creed-based needs is dismissed as having no reasonable prospect of success.
Request that the applicant be declared a vexatious litigant
97The respondents seek an order declaring the applicant to be a vexatious litigant. An Application filed by a person who has been declared to be a vexatious litigant will not be served on a respondent without the consent of the Tribunal. This is intended to prevent a person from abusing the Tribunal’s process both with respect to potential respondents and in respect of the Tribunal’s resources.
98In Hiamey v. Conseil scolaire de district Catholique Centre-Sud, 2012 HRTO 1331 (“Hiamey”), upheld in 2015 ONSC 5113 (Div. Ct.), the Tribunal reviewed some of the factors to be applied when determining whether a person is a vexatious litigant:
(a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;
(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;
(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
(d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;
(e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;
(f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; and
(g) the respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.
99The Tribunal has stated that it is not necessary that all of these factors be present in order for an individual to be declared a vexatious litigant. In order to declare the applicant to be a vexatious litigant, the Tribunal must be satisfied on an objective standard that the applicant has persistently and without reasonable grounds, instituted vexatious proceedings or conducted himself in a vexatious manner during the proceedings.
100The Tribunal typically considers the frequency and number of applications filed without merit or apparent merit, as well as the conduct of the party. See Drenic v. Governing Council of the Salvation Army, 2010 HRTO 1667; Carlos v. Scher Law, 2010 HRTO 2019; Bingham v. Roach Schwartz Law Office, 2011 HRTO 15; Hiamey v. Conseil scolaire de district Catholique Centre-Sud, 2012 HRTO 1331; and Dai v. Presbyterian Church in Canada, 2012 HRTO 1975, upheld in Dai v. Presbyterian Church in Canada, 2013 ONSC 6650.
101The basis for the respondent’s request is explained in its submissions in the following terms:
Mr. Felix is a litigious individual who has filed eighteen complaints against his former employers, including the corporate respondents herein, with the Human Rights Tribunal of Ontario (HRTO) of which fourteen have been reported and the HRTO ultimately found in favour of the employer. Mr. Felix has also filed applications under the surname “der von Felix”. Mr. Felix has commenced a total of thirty-six proceedings brought in other forums; none have been successful. Mr. Felix has displayed and continues to display a vexatious pattern of allegations and conduct in each of these complaints, including the within action.
102The number of Applications the applicant has filed with this Tribunal is higher than the 18 identified by the respondent as that number does not include some Applications that have been settled without a public decision. It also does not include the Applications that the applicant has filed since the respondent’s submissions, including Applications that the applicant has filed against other respondents arising out of the events alleged in the present Application.
103In earlier Applications, the applicant’s disrespectful behaviour was so extreme that at least two were dismissed as abuse of process: Felix v. Shoppers Drug Mart, 2011 HRTO 89, Felix v. Global Payments of Canada GP, 2011 HRTO 1983.
104At the hearing before me, the applicant was respectful of the Tribunal and the respondent. However, in some of his communications prior to the hearing, he was disrespectful and threatening to the Tribunal and the respondent, although not to the extent documented in the earlier cases. As noted by the respondent, in the Tribunal’s process leading up to the hearing, the applicant frequently ignored directions from the Tribunal. As discussed earlier in this Decision, there is some indication that the applicant misled the Tribunal at the time of the first summary hearing.
105This is the second Application that I have adjudicated involving the applicant and a request that the applicant be declared a vexatious litigant.
106In Felix v. Canadian Tire Corporation, 2014 HRTO 1615, the applicant alleged that he had experienced discrimination and reprisal in a hiring process. The allegations in that case included an allegation that the respondent’s hiring committee consisted of two Black men. The applicant, who identifies as a Black man, alleged that this was done to cover up the respondent’s intention to discriminate against him because of race and colour. As in the instant case, the applicant also made allegations that events when he was employed by an earlier employer had played a role in his not being hired. I declined to declare the applicant a vexatious litigant at that time.
107Since that Application was filed, the applicant has filed eleven more Applications.
108At the hearing, the applicant did not dispute any of the information provided by the respondents in support of the request that the applicant be declared a vexatious litigant. He said that he had no objection to being declared a vexatious litigant and indicated that it might be helpful to him if any future Application was reviewed first by the Tribunal before it was served on a respondent.
109In consideration of the applicant's history with the Tribunal and the submissions of the parties, I find that the applicant should be declared to be a vexatious litigant.
Decision
110The Application is dismissed.
111The Tribunal declares the applicant to be a vexatious litigant. After the date of this Decision, he cannot commence any application at the Human Rights Tribunal of Ontario without first obtaining leave of the Tribunal.
Dated at Toronto, this 12th day of October, 2016.
“Signed By”
Brian Cook
Vice-chair