Hatton v. Securitas Canada Limited, 2016 HRTO 1348

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Douglas Hatton Applicant

-and-

Securitas Canada Limited, PepsiCo Canada ULC, and All Star Security Respondents

INTERIM DECISION

Adjudicator: Bruce Best Date: October 17, 2016 Citation: 2016 HRTO 1348 Indexed as: Hatton v. Securitas Canada Limited

WRITTEN SUBMISSIONS

Douglas Hatton, Applicant Jean-Alexandre De Bousquet, Counsel

Securitas Canada Limited, Respondent Jennifer Hodgins, Counsel

All Star Security, Respondent Ian A. Wilson, Counsel

Introduction

1This Application was filed under s.34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”), on April 25, 2016, alleging discrimination in employment on the grounds of disability.

2The respondent Securitas Canada Limited (“Securitas”) and the respondent All Star Security (“All Star”) both request that the Tribunal hold a summary hearing under Rule 19A to determine whether the Application has no reasonable prospect of success. Securitas also asks that the Application against it be dismissed for delay under s.34 of the Code, and that the allegation that it terminated the applicant’s employment be dismissed under s.45.1 of the Code on the basis that another proceeding has appropriately dealt with the substance of that issue.

3For the reasons below, I refuse the request to dismiss part of the Application under s.45.1 of the Code, and also refuse to grant the requests for a summary hearing. I further find that the issue of whether any of the allegations are untimely is a matter appropriately left to be addressed by the adjudicator hearing the Application on the merits.

Background

4The applicant was an employee of the respondent Securitas, a company that provides security guarding and related services. He was, until April 24, 2015, working at the premises of the respondent, PepsiCo Canada ULC (“Pepsi”), as the site supervisor for Securitas staff. His duties included interaction with management of the Pepsi plant respecting security issues. Though the security guards were members of a union, as a supervisor, the applicant was not unionized.

5The applicant alleges that after he experienced an epileptic seizure while working at the Pepsi plant, Pepsi raised concerns about his ability to do the job. He claims these concerns were based on stereotypes respecting his disability. He alleges that Securitas failed to take steps to address his concerns respecting how he was being treated by Pepsi. He also alleges that up until the last day he worked at the Pepsi plant, he was required to perform hourly “check calls” due to his disability, which he claims were unnecessary and humiliating.

6Effective April 24, 2015, the contract to provide security at the Pepsi plant switched from Securitas to All Star. The existing Securitas staff were apparently given an opportunity to become employees of All Star and remain at the plant, or to remain with Securitas and be relocated to other postings. The applicant claims that all the existing staff except him were asked if they wanted to stay. The applicant continued to work for Securitas after April 24, 2015 in various other locations, in unionized positions. The applicant claims that, in a telephone conversation in July 2015, he was told by Mr. Gallagher, the proprietor of All Star, that Pepsi did not want him to work at the plant because of his disability.

Section 45.1

7Section 45.1 of the Code 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.

8On September 2, 2015, the applicant filed a claim with the Ministry of Labour under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”) for termination and severance pay. The claim was dismissed by an employment standards officer under s.99(2) of the ESA on the basis that it had no jurisdiction as the applicant was, at the time he filed the claim, a member of a trade union. The applicant filed an application to review the ESA decision with the Ontario Labour Relations Board (“OLRB”), but that application was subsequently withdrawn.

9Securitas argues that the ESA decision shows he was not in fact terminated on April 24, 2015, as he was still an employee in September 2015. It argues that allegation that he was terminated should therefore be dismissed under s.45.1 of the Code.

10It is not clear to me, however, what relevance the ESA decision has to this Application. The only finding in the ESA decision is that the applicant was a unionized employee in September 2015. This is not disputed - the applicant agrees that he continued to work for Securitas in a different unionized position after working at the Pepsi plant. The reference in the Reply to “termination” appears only to be referring to the end of his employment as a non-unionized site supervisor at the Pepsi plant on April 24, 2015.

11The ESA claim was, in any case, dismissed on jurisdictional grounds, and there was no determination of any kind respecting the allegations raised in the Application.

12In my view, the ESA decision has not appropriately dealt with any of the allegations in the Application. The request under s.45.1 is refused.

Delay

13The issue of whether the allegations against Securitas are part of a series of incidents ending on April 24, 2015 will require the hearing of evidence. Furthermore, given the nature of the allegations and the nature of the workplace, evidence from both Securitas and Pepsi will likely be necessary to determine the issues, and the evidence will in large part be the same as the evidence that would be heard to determine the Application on the merits.

14In my view, it would be most expeditious for the issue of delay to be addressed by the adjudicator hearing the Application on the merits rather than holding a separate preliminary hearing. This decision is made without any determination on the merits of Securitas’ position with respect to delay, and without prejudice to its right to raise the issue again should the matter proceed to a hearing on the merits, or the ability of the hearing adjudicator to determine how the issue of delay should be addressed.

Request for a summary hearing

15Both Securitas and All Star have filed a request for a summary hearing on the basis that the Application has no reasonable prospect of success. This request is refused.

16Under Rule 19.5A, the Tribunal need not give reasons for a decision not to hold a summary hearing, and I decline to do so. The decision not to hold a summary hearing, however, should not in any way be taken as an opinion or indication that the Application will ultimately be successful.

Order and Directions

17The request to dismiss part of the Application under s.45.1 of the Code is refused.

18The requests for a summary hearing are refused.

19The request to hold a preliminary hearing to address the issue of delay is refused, without prejudice to the right of the respondents to raise the issue of delay should the matter proceed to a hearing on the merits.