Galuego v. Spectrum Health Care, 2016 HRTO 1367

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leonardo Galuego Applicant

-and-

Spectrum Health Care Respondent

DECISION

Adjudicator: Ken Bhattacharjee Date: October 21, 2016 Citation: 2016 HRTO 1367 Indexed as: Galuego v. Spectrum Health Care

APPEARANCES

Leonardo Galuego, Applicant Self-represented

Spectrum Health Care, Respondent Stephanie M. Ramsay, Counsel

Introduction

1The applicant, who is a man, was employed by the respondent, which is a home health care provider, as a casual Personal Support Worker (“PSW”) for approximately 10 years. During his tenure of employment, the respondent did not assign him female clients. In early 2014, the applicant’s employment with the respondent ended following a dispute with his supervisor.

2The purpose of this Decision is to decide whether the respondent discriminated against the applicant because he is a man by not assigning him female clients, and terminated his employment as a reprisal for claiming his rights under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

3The Application is dismissed. I have decided that the applicant has not proven, on a balance of probabilities, that the respondent discriminated against him or subjected him to a reprisal. The following are my reasons.

BACKGROUND

4On January 13, 2014, the applicant filed an Application under s. 34 of the Code with this Tribunal, which alleged that the respondent discriminated against him with respect to employment because of his disability, sex, gender identity, and age, and subjected him to reprisal. Among other things, he alleged that the respondent discriminated against him based on sex and gender identity because it assigned female PSWs both female and male clients, but assigned male PSWs, such as him, only male clients. He alleged that the respondent’s discriminatory practice resulted in him being assigned fewer hours of work than even newly-hired female PSWs. He also alleged that the respondent subjected him to reprisal for claiming his rights under the Code, but this allegation was vague.

5On March 20, 2014, the respondent filed a Response to the Application, which denied the allegations of discrimination and reprisal. With respect to the applicant’s allegation of discrimination based on sex and gender identity, the respondent admitted that it had a general practice of placing female clients with female PSWs, but stated that the practice was necessary because of the personal and largely unsupervised nature of care provided by PSWs. The respondent stated that the practice exists to eliminate the risk that a female client could feel uncomfortable with, or harassed by, a male PSW, and to minimize the risk that a male PSW could be accused of harassment. The respondent denied that the applicant was assigned fewer hours of work than female PSWs because of this general practice.

6On April 3, 2014, the respondent filed a Request for Summary Hearing. On April 10, 2014, the applicant filed a Reply to the Response, which made further allegations of discrimination and reprisal, and opposed the respondent’s Request for Summary Hearing. Among other things, the applicant alleged that the respondent terminated his employment as a reprisal for claiming his rights under the Code.

7On January 15, 2015, following a summary hearing, the Tribunal issued an Interim Decision, 2015 HRTO 62, which made the following orders:

1. The applicant’s allegation that the respondent’s practice of assigning female PSWs to both female and male patients, but assigning male PSWs, such as him, only to male patients, constituted discrimination against him because of his sex and gender identity will proceed to a merits hearing.

2. The applicant’s allegation that the respondent’s decision to terminate his employment was a reprisal for filing a human rights Application will proceed to a merits hearing.

3. The applicant’s remaining allegations of discrimination and reprisal are dismissed.

8The hearing of the merits of the Application took place over two days. I heard the oral testimony of three witnesses: the applicant; Tracey Trueman, who is the Supervisor of the respondent’s Coordination Department, which assigns PSWs to clients; and Carol Ann Tabuchi, who is the respondent’s Human Resources Manager. I also admitted into evidence a number of documents tendered by the parties, including the applicant’s offer of employment letter, emails, records of the work hours of PSWs employed by the respondent, client notes, and correspondence between the applicant’s legal counsel and the respondent about the end of his employment.

EVIDENCE

Discrimination Because of Sex and Gender Identity

9The Ontario Ministry of Health and Long-Term Care (the “Ministry”) has established Community Care Access Centres (“CCACs”), which assist members of the public, specifically, senior citizens and persons with disabilities, to access community health care services, including home health care. The purpose of home health care is to assist seniors and persons with disabilities to live independently in their own homes. The Ministry provides funding to approved home health care providers who receive client referrals from CCACs.

10The respondent is an approved home health care provider, which receives funding from the Ministry and client referrals from CCACs. The respondent provides personal support and nursing services to clients in their homes. The personal support services are provided by PSWs.

11In 2004, began working for the respondent as a casual PSW. He testified that during the tenure of his employment, the respondent only assigned him male clients, but assigned female PSWs both female and male clients. As a result, he stated, he had low work hours. He stated that the respondent denied his request to be assigned female clients on the basis that those clients preferred female PSWs.

12The applicant testified that there was no reason to refuse to assign him female clients because his care duties did not include intimate care. In cross-examination, he admitted that his care duties included assisting clients with dressing and undressing, and bathing them, including washing their body, while they were naked. However, he stated, there was no intimate care involved because he generally did not wash the genitals of clients.

13In cross-examination, the applicant also did not dispute that female clients request female PSWs because they do not feel comfortable being dressed, undressed, and bathed by male PSWs. However, he stated, the respondent should have ignored such requests, and given him the opportunity to demonstrate to those clients that he could perform care duties comfortably for them.

14In their testimony, the respondent’s witnesses did not deny that the respondent only assigned the applicant male clients, but assigned female PSWs both female and male clients. By way of explanation, Ms. Trueman testified that clients can make specific requests for a male or female PSW through the CCAC referral process or directly to the respondent. Ms. Tabuchi testified that male clients request both male and female PSWs, but that the vast majority of female clients request a female PSW, particularly for dressing and bathing care needs.

15Ms. Trueman also testified that the respondent’s practice is not to assign male PSWs to female clients for dressing and bathing care. She stated that the vast majority of assignments involve dressing and bathing care. Ms. Tabuchi testified that it is extremely rare for a female client to request a male PSW for dressing and bathing needs, but that the respondent will accommodate such a request by assigning a male PSW.

16Ms. Trueman also testified that male PSWs can be and are assigned to assist female clients with non-intimate care needs such as administering eye drops or insulin, or providing an escort to the doctor’s office, but that assignments that solely involve non-intimate care needs are infrequent.

17In their testimony, the respondent’s witnesses denied that the respondent’s practice not to assign male PSWs to female clients for dressing and bathing care resulted in the applicant and other male PSWs being assigned fewer hours of work than female PSWs. By way of explanation, Ms. Trueman testified that the fact that some male clients, because of their weight, request a male PSW, coupled with the fact that male PSWs only comprise a small percentage of the total number of PSWs, means that male PSWs are in high demand.

18Ms. Tabuchi testified that she collected a sample of the records of the working hours of casual PSWs from the respondent’s databases, and calculated the average paid work week of PSWs based on gender. The respondent tendered, and the Tribunal admitted, into evidence records and statistics, which show that between July 2013 and January 2014, a female casual PSW had an average paid work week of 20.83 hours while a male casual PSW had an average paid work week of 22.73 hours, and that between December 2012 and January 2014, the applicant had an average paid work week of 28.22 hours.

19In cross-examination, when asked to confirm whether or not these records and statistics were accurate, the applicant stated that he did not know. When asked how he was being disadvantaged if his average paid work week hours were higher than the average paid work week hours of female casual PSWs, he stated that his concern was not about his average paid work week hours. Rather, he stated, the respondent’s refusal to assign him female clients because he was a male PSW made him feel inferior.

Reprisal for Claiming Rights Under the Code

20On January 11, 2014, the applicant’s supervisor called him, and requested that he attend a meeting at the respondent’s office on January 13, 2014 to discuss an issue about his behaviour. The applicant told his supervisor that he was unable to attend the meeting. The applicant testified that later the same day, when he attended the home of a regular client whom the respondent assigned him to, another PSW was already there to replace him.

21On January 13, 2014, a respondent staff person informed the applicant by telephone in the early morning that he would not be scheduled for appointments for the next two days. The applicant then sent Ms. Tabuchi an email, which alleged that the suspension constituted discrimination under the Code, and that he would be attending this Tribunal during the week because of gender discrimination. A few hours later, the applicant filed his Application with this Tribunal. At the end of the day, he sent a further email to Ms. Tabuchi, which stated that he had filed a complaint with this Tribunal.

22The applicant testified that he refused to attend a meeting at the respondent’s office because the cancellation of his shifts meant that the employer-employee relationship was broken, and that he had been constructively dismissed. The Tribunal asked the applicant whether it was his position that the employment relationship was over, and he had been constructively dismissed, on January 11, 2014. The applicant responded in the affirmative, and repeated that the employment relationship was broken on the date. The Tribunal then asked the applicant how he could have been subjected to a reprisal for claiming his rights under the Code when the evidence before the Tribunal shows that he informed the respondent that he was claiming his rights under the Code after, according to him, the respondent had constructively dismissed him. The applicant responded that he believed that the respondent knew that he was intending to claim his rights under the Code prior to that date.

23On February 5, 2014, the applicant’s legal counsel sent the respondent a letter, which took the position that the applicant had been constructively dismissed.

24On February 13, 2014, the Tribunal sent the applicant’s human rights Application to the respondent.

25On February 14, 2014, the respondent sent the applicant a letter, which denied that he had been constructively dismissed, and stated that his refusal to attend a meeting at the office constituted an abandonment of his employment, or alternatively, gross insubordination which justified terminating his employment for just and reasonable cause.

26On March 3, 2014, the respondent issued a Record of Employment, which indicated that it had dismissed the applicant from his employment.

27After the applicant had completed his testimony, I directed the parties to provide submissions on whether the applicant could have been subjected to a reprisal for claiming his rights under the Code when the evidence before the Tribunal shows that he informed the respondent that he was claiming his rights under the Code after, according to him, the respondent had constructively dismissed him. The applicant then stated that he had never testified that he was constructively dismissed. Rather, he stated, he had testified that the employment relationship was “broken”. I pointed out to the applicant that he had, in fact, testified that he was constructively dismissed.

28In his closing submissions, the applicant repeated his allegation that his supervisor constructively dismissed him on January 11, 2014. When the Tribunal asked him again how he could have been subjected to a reprisal when he claimed his rights under the Code after, according to him, he was constructively dismissed, he again attempted to retract the statement he was constructively dismissed, and stated that the employment relationship was “breached”.

ANALYSIS

29The Application relates to sections 5, 8, and 9 of the Code, which provide:

5.(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

8. 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.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

30The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53 at para. 46.

31The Tribunal does not have the power to deal with or remedy general allegations of unfairness. The applicant must establish discrimination on the basis of one of the grounds alleged in the Code, or reprisal as defined in the Code. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.

Did the respondent discriminate against the applicant because he is a man by not assigning him female clients?

32In Shaw v. Phipps, 2010 ONSC 3884, upheld 2012 ONCA 155, the Ontario Divisional Court held at para. 47 that in order to establish a case of discrimination, the applicant must prove that (1) he is a member of a group protected by the Code; (2) he was subjected to adverse treatment; and (3) a Code ground was a factor in the adverse treatment.

33The Supreme Court of Canada’s decision in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, defined discrimination at pp. 174-75 as follows:

Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.

34Moreover, the Code is concerned with substantive discrimination, not merely differential treatment. In McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161, Abella J. stated at para. 49:

(…) there is a difference between discrimination and a distinction. Not every distinction is discriminatory. It is not enough to impugn an employer's conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact, that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.

35More recently, in Quebec (Attorney General) v. A, 2013 SCC 5, Abella J., writing for the majority on the analysis of discrimination under s. 15(1) of Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11, stated, at paras. 319-331, that the claimant’s burden is to demonstrate that the distinction is based on an enumerated ground and that the distinction’s impact on the individual or group perpetuates disadvantage. She also stated that prejudice and stereotyping are two of the indicia that may help demonstrate that there is substantive discrimination, but they are not discrete elements which the claimant is obliged to demonstrate. She stated that requiring a claimant to prove that a distinction will perpetuate prejudicial or stereotypical attitudes towards him or her improperly focuses attention on whether a discriminatory attitude exists, not a discriminatory impact, and imposes a largely irrelevant, not to mention ineffable burden, on him or her. Rather, she stated that the Court should engage in a flexible and contextual inquiry into whether a distinction has the effect of perpetuating an arbitrary disadvantage on the claimant because of an enumerated ground. She also stated the contextual factors will vary from case to case, and there is no rigid template.

36In the case at hand, there is no dispute that the respondent subjected the applicant to differential treatment because he is a man by assigning him (and other male PSWs) only male clients, but assigning female PSWs both female and male clients, for dressing and bathing care in the clients’ homes. The main issue is whether the differential treatment had the effect of perpetuating an arbitrary disadvantage on the applicant.

37In my view, given the evidence presented by the parties and the unique contextual factors this case, the differential treatment did not have the effect of perpetuating an arbitrary disadvantage on the applicant.

38I find that the respondent’s practice of accommodating the gender-specific request of female clients, who are elderly and/or disabled, to have female PSWs, and not assigning a male PSW to a female client unless requested by the client, for dressing and bathing care in the clients’ homes, is not arbitrary. This practice is rooted in the inequality between men and women in society, which includes sexual harassment and violence against women. The fact that the clients are elderly and/or disabled compounds their vulnerability. In Weatherall v. Canada (Attorney General), 1993 CanLII 112 (SCC), [1993] 2 S.C.R. 872, a male prisoner in a male penitentiary alleged that the frisking of prisoners and the searching and patrolling of their cell ranges by female guards was discriminatory because female prisoners in a female penitentiary are not subjected to the same practices by male guards. The Supreme Court of Canada’s reasons at para. 6 for finding that the practice was not discriminatory are applicable to the case at hand:

The jurisprudence of this Court is clear: equality does not necessarily connote identical treatment and, in fact, different treatment may be called for in certain cases to promote equality. Given the historical, biological and sociological differences between men and women, equality does not demand that practices which are forbidden where male officers guard female inmates must also be banned where female officers guard male inmates. The reality of the relationship between the sexes is such that the historical trend of violence perpetrated by men against women is not matched by a comparable trend pursuant to which men are the victims and women the aggressors. Biologically, a frisk search or surveillance of a man's chest area conducted by a female guard does not implicate the same concerns as the same practice by a male guard in relation to a female inmate. Moreover, women generally occupy a disadvantaged position in society in relation to men. Viewed in this light, it becomes clear that the effect of cross-gender searching is different and more threatening for women than for men.

39Furthermore, I find that the respondent’s practice did not impose a disadvantage on the applicant. In his Application, the disadvantage that he identified was being assigned fewer hours of work than female PSWs. However, at the hearing, the respondent presented credible and reliable evidence, which I accept, that because of the small number of male PSWs and the high demand for their services, the average paid work week hours of male PSWs, including the applicant, was higher than the average paid work week hours of female PSWs.

40After this evidence was put in front of the applicant in cross-examination, he changed his testimony and stated that his concern was not about his average paid work week hours, but rather that he was made to feel inferior because he was a male PSW. In his closing submissions, he also stated that he lost self-respect because the respondent saw him as a sexual predator. I did not find the applicant’s change of testimony to be credible. Nowhere in his Application or his testimony-in-chief did he mention that the respondent’s practice made him feel inferior or that he lost self-respect because he was seen as a sexual predator. I would also point out that there was no evidence that the respondent viewed him as a sexual predator. This was simply an unconvincing, after-the-fact attempt to shore up his allegation of discrimination in the face of credible and reliable evidence that undermined his position.

41Accordingly, the applicant’s allegation that the respondent discriminated against him because he is a man by not assigning him female clients is dismissed.

Did the respondent terminate the applicant’s employment as a reprisal for claiming his rights under the Code?

42In order to establish a case of reprisal, the applicant must prove the following elements:

1. An action taken against, or threat made to, the applicant;

2. The alleged action or threat is related to the applicant having claimed, or attempted to enforce a right under the Code; and

3. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

See Noble v. York University, 2010 HRTO 878 at para. 33.

43In my view, the applicant failed to establish that the termination of his employment was a reprisal for claiming his rights under the Code because his own evidence was that the respondent constructively dismissed him from employment before he notified the respondent that he was claiming his rights under the Code. Specifically, the applicant testified that he was constructively dismissed on January 11, 2014, when his supervisor started cancelling his shifts. He stated that on that day, when he attended the home of a regular client whom the respondent assigned him to, another PSW was already there to replace him. It is undisputed that, next, on January 13, 2014, a respondent staff person informed the applicant by telephone in the early morning that he would not be scheduled for appointments for the next two days. It is also undisputed that, then, for the first time, he sent two emails to Ms. Tabuchi, the first which alleged that the suspension constituted discrimination under the Code, and the second which stated that he had filed a complaint with this Tribunal.

44When the Tribunal asked the applicant how he could have been subjected to a reprisal for claiming his rights under the Code when the evidence before the Tribunal shows that he informed the respondent that he was claiming his rights under the Code after, according to him, the respondent had constructively dismissed him, he responded that he believed that the respondent knew that he was intending to claim his rights under the Code prior to that date. However, this was a bald assertion. He did not present any particulars or evidence to back up this belief.

45After testifying, the applicant attempted to deny that he had testified that he was constructively dismissed, and in his closing submissions, he attempted to retract his statement that he was constructively dismissed. Rather, he stated, his position was that the employment relationship was “broken” or “breached”. I did not find the applicant’s shifting position on this important factual point to be credible. I find that his genuine position is that the respondent constructively dismissed him on January 11, 2014, which was before he informed the respondent that he was claiming his rights under the Code.

46Accordingly, the applicant’s allegation that respondent terminated his employment as a reprisal for claiming his rights under the Code is dismissed.

ORDER

47The Application is dismissed.