HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Joseph Markunas
Applicant
-and-
Commercial Bakeries Corporation, Anthony Fusco Sr. and Stephen Brain
Respondents
DECISION
Adjudicator: Naomi Overend
Indexed as: Markunas v. Commercial Bakeries Corporation
APPEARANCES
Joseph Markunas, Applicant
Self-represented
Commercial Bakeries Corporation, Anthony Fusco Sr. and Stephen Brain, Respondents
Sundeep Gokhale, Counsel
Introduction
1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of disability. By Case Assessment Direction, the Tribunal directed that the matter be scheduled for a summary hearing by teleconference.
2The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure 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, whether an application should be dismissed in whole or in part because there is no reasonable prospect that it will succeed.
3For the reasons set out below, I find that there is no reasonable prospect that the single comment made by the respondents relating to the ground of disability amount to discrimination under the Code. Moreover, I find that the applicant will not be able to establish a link between the respondents’ other alleged actions set out in the pleadings and the ground of disability.
Factual Background
4The applicant states that he has worked for the respondent, Commercial Bakeries Corporation (“Commercial Bakeries”) and its predecessor since February 1983. The name and ownership of the company changed in either 1989 or 1993 (there is a difference between the parties, which I do not need to resolve). The individual respondent, Anthony Fucco Sr., is described as the founder and president of Commercial Bakeries. The other individual respondent, Stephen Brain, is the plant manager.
5The workers at Commercial Bakeries are represented by Unifor, Local 462 (“Unifor”). The applicant is the chief steward, a position which the parties agree he has held for many years. It is clear from the pleadings and the parties’ submissions at the summary hearing that the applicant has an acrimonious relationship with the respondents and that the incident that gave rise to this Application was not an isolated one, but rather part of a pattern of hostility. It is not my role in this summary hearing to determine who is to blame for this acrimony.
6On or about September 3, 2014, the applicant and Brain had a meeting at which time Brain confronted the applicant about a letter he had apparently passed on to the plant’s Sanitation Manager. The applicant refused to answer Brain’s questions about why the applicant had passed on the letter. In a subsequent email written that day to the management, Brain states that the applicant advised him that it was “none of [his] business.”
7The third paragraph of this email states:
This is only one of many instances which exemplifies Joe’s mental imbalance and total lack of respect for the Management of this Company. It also validates what a complete and utter waste of time and effort to ever have a conversation with this man. His role and position as Chief Steward is a farce and continues to put a strain on the relationship between Ownership/Management and the union. His contempt is evident in every meeting between Management and Union.
8As a result of this interaction, the respondents filed an employer grievance, dated September 15, 2014, with respect to the applicant’s role as Unit Chair of Unifor. The September 3, 2014 email was attached to this grievance, which was given to the applicant on or around September 16, 2014.
9Unifor filed a grievance on the applicant’s behalf on September 22, 2014 with respect to the “harassment,” which it said included the reference to Mr. Markunas having a “mental imbalance.” Neither the employer’s grievance, nor the one filed by Unifor, appears to have been proceeded with. Unifor and the employer reached a resolution, which the applicant did not accept. He states he was advised by Unifor to “go to Human Rights,” which he did by filing this Application.
10In the proposed resolution between the Employer and Unifor of the latter grievance, the Employer (i.e., Commercial Bakeries) states that it “admits and acknowledges that it does not believe, and never has believed or perceived, that Mr. Markunas suffers from a mental disability or imbalance of any kind.” This same statement is repeated in the respondents’ Response to the Application.
Decision and analysis
11The applicant decries the insults in the September 3, 2014 email. He states he is not only upset by the use of the words “mental imbalance,” but also the reference to him being a “farce” and the assertion that it is “a waste of time talking to [him].” He submits that the respondents waited almost two weeks before submitting the employer grievance, during which time they could have toned down the language in the email. Instead they attached the email to the grievance, thereby making it a personal attack.
12He further submits that the respondents could have come forward earlier to state that they did not believe that he was suffering from a mental disability, but waited for many months to retract this. Had they done this immediately, he states, he would not have pursued this Application against them.
13It is common ground between the parties that the respondents have no reason to believe that the applicant has an actual “mental imbalance” or other mental disability. The respondents state that they did not ever perceive the applicant to have a disability, but the applicant does not accept this assertion. In fact, he states that they must have had some basis for making the statement and he would like to know what it is. In the absence of testimony, I cannot make a finding on this dispute. That is, this is an issue that cannot be resolved at the summary hearing stage.
14Assuming, without deciding, that the respondents perceived the applicant had a disability at the time they made this statement, the question remains whether this is sufficient to ground a finding of discrimination?
15The applicant states that he is entitled to look back at the history of his strained relations with the respondents and ask the Tribunal to determine whether his perceived disability was a factor in the adverse treatment he received prior to the remark being made (including comments, changes in assignments and discipline imposed). The applicant acknowledges that it is speculation on his part and that, other than the September 3, 2014 comment, he has no evidence linking this prior treatment to the ground of disability.
16Indeed, the applicant is unable to point to any evidence of actions or incidents that occurred after the September 3, 2014 comment that might be related to any perceived disability, despite the fact that he filed almost a year later after the fact.
17That is, the applicant is unable to point to any evidence reasonably available to him to support his hypothesis of a possible link between pre-September 2014 conduct and any perception on the part of the respondents about his mental state. There is no reasonable prospect of success with respect to these prior allegations.
18The applicant has suggested that this single comment “poisoned” his work environment. While a single comment can, in certain instances, poison a working relationship, the applicant has pointed to no evidence that he might call that this occurred. The applicant acknowledges that he was equally insulted by being called a “farce” and being told that engaging with him was a “waste of time” in the September 3, 2014 email. Indeed, the applicant and respondents are in agreement that the acrimonious relationship between the applicant and the employer is a long-standing one.
19For the reasons set out above, I find that this Application has no reasonable prospect of success.
order
20The Application is dismissed as having no reasonable prospect of success.
Dated at Toronto, this 5th day of May, 2016.
“signed by”
Naomi Overend
Vice-chair