Smith v. Canadian Tire 162 (Graham J. Keene Enterprises Ltd.), 2016 HRTO 615

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Thomas Smith

Applicant

-and-

Canadian Tire 162 (Graham J. Keene Enterprises Ltd.)

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: May 6, 2016

Citation: 2016 HRTO 615

Indexed as: Smith v. Canadian Tire 162 (Graham J. Keene Enterprises Ltd.)

APPEARANCES

Thomas Smith, Applicant

Self-represented

Canadian Tire 162 (Graham J. Keene Enterprises Ltd.), Respondent

Graham Keene, Representative

1By Application filed March 12, 2015, the applicant alleged that the respondent discriminated against him because of family status and disability contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). He also alleged that the respondent reprised against him contrary to the Code when it terminated his employment.

2By Case Assessment Direction (“CAD”), the Tribunal directed that a preliminary hearing be held to address several preliminary issues before this case could proceed to a hearing on the merits (substance) of the case. In the CAD, the Tribunal noted that it was necessary to obtain clarification of the timing of some of the alleged incidents set out in the Application. As well, the Tribunal noted that it required clarification of the nature of some of the allegations as well as whether others were settled by the parties.

3Depending on the clarifications provided by the parties, the Tribunal held that the following three issues might need to be addressed: (1) whether any part of the Application should be dismissed as untimely; (2) whether proceeding with any allegations that were the subject of a settlement would amount to an abuse of process; and (3) whether the applicant’s allegations of disability-related discrimination had been appropriately dealt with in another proceeding. In addition to these three issues, I sought clarification from the applicant as to the nature of his harassment allegations against his supervisor and his allegations of unfair discipline.

4For the reasons that follow, I find that the Application cannot be dismissed on a preliminary basis for any of the reasons set out in the CAD. In my view, the Tribunal must hear evidence from the parties in a hearing on the merits in order to determine the Application.

applicant’s allegations in application

5In his Application, the applicant raises the following four sets of allegations:

a. That the respondent discriminated against him based on his family status by scheduling him for fewer hours than other part-time employees when he advised the respondent that he could no longer work week-ends due to his family responsibilities;

b. That he was subject to harassment by his supervisor and unfairly disciplined by the respondent;

c. That he was subject to disability-related discrimination following a work-related injury that occurred in 2011; and

d. That the respondent reprised against him within the meaning of the Code when it terminated his employment the day after he raised concerns about his supervisor with the respondent’s President.

Family Status Allegations

6Counsel for each of the parties exchanged correspondence between February and June 2013 in which they discussed a resolution of the applicant’s allegations that he was being discriminated against because of family status. However, at the preliminary hearing, both parties confirmed that they did not enter into a formal settlement of the allegations. Since there was no settlement of the allegations there is no basis to find that allowing these allegations to proceed would amount to an abuse of process.

7In terms of timeliness, I note that in his Application the applicant alleged that he received fewer hours than other part-time employees at various times between 2012-2014. At the preliminary hearing, he stated that the situation with his hours improved after the exchange of correspondence between the parties’ counsel in early 2013. However, the applicant stated that the situation got worse once he began reporting to a new supervisor. He claimed that the new supervisor “attempted” to reduce his hours below those of other employees at various times in and around 2014-15. When I asked him whether his hours were in fact reduced around this time, he indicated that there was only one pay period in or around 2014-15 where he received fewer hours than other part-time employees.

8I find that the applicant’s allegations of family status discrimination are timely. The last incident of discrimination in relation to these allegations occurred less than a year before the Application was filed. As well, these allegations form a series of incidents with the applicant’s reprisal allegation. For these reasons, it is not appropriate to dismiss the family status allegations and the allegation of reprisal on a preliminary basis and they must proceed to a hearing on the merits.

9I note that, at the preliminary hearing, the respondent disputed the applicant’s claim that he had ever received fewer hours than other part-time employees. In particular, the respondent noted that the hours of all part-time employees fluctuate depending on sales levels, the time of year, etc. The Tribunal will consider such evidence, as well as the applicant’s evidence, in the hearing on the merits of this case.

allegations of harassment and unfair discipline

10In his Application, the applicant alleges that his supervisor harassed him, belittled him, and monitored his movements. As well, he alleged that the respondent disciplined him unfairly. These allegations appear to have no connection to the Code. Nevertheless, since the Application must proceed to a hearing on the merits, I leave it up to the adjudicator assigned to conduct the merits hearing to determine how best to deal with these allegations.

allegations of disability discrimination

11The nature of the applicant’s allegations of disability-related discrimination are not clear from his Application. In the preliminary hearing, he alleged that the respondent discriminated against him by failing to accommodate his disability. After an injury he sustained to his back in 2011, the applicant’s doctor recommended that he avoid any heavy lifting. The applicant acknowledges that the respondent transferred him to the sports department where any heavy lifting would be minimized. The applicant stated that he had the benefit of assistance from co-workers with any heavy lifting that was required. However, he claimed that in many instances no co-worker was available to assist him. I asked the applicant whether he informed the respondent of these problems with his accommodation and he claimed to have raised the issue with his supervisor sometime in or around 2014-15.

12In light of these assertions by the applicant, I find that it is not appropriate to dismiss his disability-related allegations at this preliminary stage of proceeding because he has pointed to at least some evidence that could establish the necessary link to the Code. Having said this, I note that the applicant will be required to provide much more specific evidence at a merits hearing about any ongoing disability he claims to have had, the nature of any ongoing disability-related restrictions, his requests for accommodation and exactly when and in what circumstances he is alleging that the respondent failed to accommodate any ongoing disability-related restrictions of which it had been made aware.

order

13For the reasons set out above, the Application will proceed to a hearing in order for the Tribunal to hear full evidence from the parties in relation to the allegations in the Application. The Tribunal’s Registrar shall schedule a 1 day in person hearing in this case.