Edward Piatowski v. Gary Athoe, 2016 HRTO 1342

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Edward Piatowski Applicant

-and-

Gary Athoe Respondent

DECISION

Adjudicator: Keith Brennenstuhl Date: October 14, 2016 Citation: 2016 HRTO 1342 Indexed as: Piatowski v. Athoe

APPEARANCES

Edward Piatowski, Applicant Self-represented

Gary Athoe, Respondent David Bannon, Counsel

Introduction

1The applicant filed an Application alleging that the respondent and his employer, General Motors of Canada (“GM”), discriminated against him with respect to employment on the basis of ancestry, disability and sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). As explained further below, the allegations were dismissed against GM.

2By Case Assessment Direction (“CAD”), the Tribunal directed that a summary hearing be held to address whether the Application should be dismissed as against the respondent on the basis that there is no reasonable prospect that it will succeed.

3As explained more fully below, I find that the Application must be dismissed on the basis that it has no reasonable prospect of success under the Code.

background

4The applicant is a former employee of GM. The applicant had filed a prior application, 2013-13926-I, against GM and the respondent, among others, while he was still employed by GM. It appears from the prior application that the personal respondent became the applicant’s supervisor sometime in July, 2012.

5A hearing was held with respect to the prior application before the matter was adjourned to give the applicant time to make proper documentary disclosure. Prior to the resumption of the hearing, the applicant’s employment with GM was terminated. The applicant’s union filed a grievance of the termination.

6The parties reached a settlement in the grievance, and the applicant signed a Settlement Agreement on March 5, 2015. The applicant states in this Application that prior to signing the Settlement Agreement, he was told that GM would not give him his job back, that he would be allowed to retire, but that he also would have to drop his prior application against the respondent, who is also the respondent in this Application. The Settlement Agreement included a full and final release with respect to GM. The applicant withdrew the prior application on March 20, 2015.

7On November 30, 2015, the Tribunal issued a Case Assessment Direction stating that a preliminary hearing would be held because it appeared there had been a full and final release with respect to the same subject matter of the Application, and that to proceed with hearing the Application may amount to an abuse of process.

8The preliminary hearing took place on April 26, 2016. The Tribunal determined, in Interim Decision 2016 HRTO 551, that the settlement agreement provided for a full and final settlement of the applicant’s claims arising out of his employment with GM and that it would have been an abuse of process to allow this Application to continue in the Tribunal’s process as against GM in the face of the signed settlement agreement. The Tribunal determined that the release only referred to GM and not to any individuals and, as such, the Application was not dismissed as against the respondent as an abuse of process.

9However, it appeared to the Tribunal that the Application against the respondent may have no reasonable prospect of success and it directed that a summary hearing be held.

10On August 10, 2016, the Tribunal issued a Notice of Summary Hearing. The hearing was held on October 3, 2016 by teleconference.

summary hearing process

11The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding and usually before a Response is filed, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

12The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.

13The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.

14However, and significantly, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine if the applicant is able to point to any information which tends to support his or her belief that he or she has experienced discrimination or reprisal under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence, or any evidence that may be reasonably available to the applicant, to connect the unfair treatment allegedly experienced by the applicant with the Code’s protections.

15As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 (“Forde”), for an Application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show a breach of the Code.

16Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the facts of this particular case.

analysis & decision

17The narrative in the Application essentially deals with the events leading up to the applicant’s termination of employment with GM. In the narrative there are two references to the respondent:

• “On October 1 2015 Dennis Reintjes is promoted to Technical Manager GF6 Engineering by Gary Athoe and will ‘report to Gary Athoe in this assignment’.”

• “Feb 20/2015 Tim McKinnon UNIFOR 199 Chairman and Paul Dortono called me at home and told me that GM will not give me my job back and only to retire for April 1/2015 and I would have to drop by HRTO case against Gary Athoe.”

18It appears that the applicant did in fact drop the case against Gary Athoe, who was one of several respondents in the prior application.

19The two references to Gary Athoe in the narrative do not, in my view, constitute acts of mistreatment at the hands of Gary Athoe. These are not allegations of discrimination, and more particularly they are not allegations of discrimination on the grounds cited by the applicant, namely ancestry, disability and sex. Indeed, the Application does not raise any allegations against the respondent, Code-related or otherwise. Consequently, the Application against the respondent has no reasonable prospect of success.

20At the hearing, the applicant raised general allegations of harassment as against the respondent but clearly this is not reflected in the Application. Moreover, to the extent harassment was raised, there was no suggestion on the part of the applicant that the harassment was in any way linked to his ancestry, disability or sex.

21In my view, the Application against the respondent has no reasonable prospect of success since the applicant has made no Code-related allegations against the respondent.

Order

22For the above reasons, the Application is dismissed.