HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sisay Assefa
Applicant
-and-
Clarendon Foundation
Respondent
DECISION
Adjudicator: Geneviève Debané
Indexed as: Assefa v. Clarendon Foundation
APPEARANCES
Sisay Assefa, Applicant
Self-represented
Clarendon Foundation, Respondent
Stephen A. Bernofsky, Counsel
1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2This matter was scheduled for a merits hearing on February 22 and 23, 2016. After reviewing the witness statements of the parties and the documents that they intended to rely on at the hearing the Tribunal directed, on its own motion, that a summary hearing would be held to determine whether the Application should be dismissed as having no reasonable prospect of success. The Tribunal issued a Case Assessment Direction on January 18, 2016 cancelling the merits hearing and directing that a half-day summary hearing via telephone conference would take place on February 22, 2016. Both parties participated at the summary hearing.
Background
3There is some history between these parties. The applicant had a workplace injury in 2010. The applicant’s employment was terminated, although neither party could provide me with the exact date this occurred, and the applicant filed a previous application with respect to his termination. The matter was settled and the applicant withdrew the previous application sometime in 2011 when he was reinstated to his employment with the respondent.
4The Application alleges that the applicant applied for nine days’ vacation which was approved on March 2, 2014. The applicant states that on March 4, 2014, he was called into a meeting with the Site Manager and the Human Resource Specialist where he was asked “We have to know why you are taking vacation and where you are going during your vacation period”. At the summary hearing he stated that he thought the meeting lasted between 15 to 20 minutes. The applicant declined to answer their questions. There is no dispute that the applicant took the vacation as planned. The applicant believes that he was singled out for differential treatment because he has a history of workplace injuries.
5The same day at approximately 18:00 the applicant sent an email in which he complained that he was asked the reason for his absence from work. The applicant writes “Later I was bothered for being in such a situation and I have asked for verification if your act was in accordance to the past practice and the standards of procedure in Ontario. Please send me clear reason for the above stated inquiry.” When I asked the applicant at the summary hearing why he did not assert that his rights under the Code had been infringed, he said that “he was in a bad mood at that time.”
6The applicant filed documents in advance of the hearing including his “Time off Request Form” (the “Form”). The Form does not indicate that the applicant is taking “vacation” but in fact indicates that he was taking a “leave without pay”. At the summary hearing he explained that the respondent treats “vacation” requests and “time-off without pay” requests in the same manner and that there is no difference. This issue is disputed by the respondent.
7On September 10, 2014, the applicant wrote another, much longer, e-mail in which he states that the true motives behind the meeting were amongst other things discriminatory in nature. The applicant also states that the respondent ignored his complaint. The respondent takes the position that it did address the March 4, 2014 e-mail by a letter sent March 14, 2014. The applicant states that the respondent falsified the March 14, 2014 letter.
8On October 8, 2014, the applicant participated in a meeting with the Site Manager and the Human Resource Specialist during which they discussed the March 4, 2014 meeting.
9On October 30, 2014, the Human Resource Specialist sent a letter to the applicant explaining his motives for the March 4, 2014 meeting and that it was not his “intent to put you in an uncomfortable position”. He also assures the applicant that there was no hidden motive behind the questioning.
10On November 4, 2014, the applicant wrote an email in which he states that he does not accept the explanations provided by the respondent and advises that he will file an application with the Tribunal. This Application was filed on the same day.
The Law
11The Tribunal does not deal with all allegations of general unfairness.
12In Peel Law Association v. Pieters, 2013 ONCA 396 at para. 59, the Ontario Court of Appeal discussed the elements required to show a prima facie case of discrimination under the Code. An applicant must prove:
he or she is a member of a group protected by the Code,
he or she was subject to adverse treatment, and
there was a connection between the adverse treatment and the ground of discrimination invoked.
13Rule 19A.1 of the Tribunal’s Rules of Procedure provides:
The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
14In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paragraphs 8-9:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
Decision
15Having considered the matter, I am of the view that this Application must be dismissed as having no reasonable prospect of success. I find that the applicant has no reasonable prospect of establishing that he was subjected to adverse treatment on the basis of his disability in the March 4, 2014 meeting.
16In my view, in order for an applicant to be successful there must be some objective evidence of “adverse treatment”. The applicant believes subjectively that he was treated in an adverse manner. However, in this case what has been described by the applicant is simply an employer questioning an employee with respect to a vacation request. In my view, an employer has the right to question employees with respect to these types of day-to-day managerial issues. I note that there was no negative consequence that flowed from this meeting, and that in fact the applicant refused to answer these questions and that no disciplinary consequences were imposed on him by the respondent. Having considered the matter on an objective basis I am of the view that the applicant has no reasonable prospect of establishing that the respondent treated him in an adverse manner.
17Further, the applicant has not proposed or presented any evidence that would link his disability to his treatment by the respondent. The entire Application is based on pure speculation and innuendo. In my view the applicant has not proposed any evidence which could lead to a finding that there was a connection between the alleged adverse treatment and his disability.
18With respect to the applicant’s allegation that the respondent did not deal with his human rights complaint I make the following observations. In the March 4, 2014, email the applicant did not assert that his Code rights had been infringed by the respondent. It is only on September 10, 2014, over six months later, that the applicant raised the issue of discrimination. Therefore, in my view any delay in responding to the applicant’s complaint between March and September 2014 is not a Code-related issue. Therefore, whether the respondent did indeed send the March 14, 2014 letter as claimed is irrelevant.
19Regardless, after the applicant raised a human rights complaint in September, the respondent convened a meeting on October 8, 2014 with all the individuals involved to address the issue and sent an explanation letter to him on October 30, 2014.
20Having considered the matter, I am of the view that the respondent appropriately dealt with the applicant’s human rights complaint raised on September 10, 2014. A meeting washeld so that the affected employees could discuss the issue and a written response was provided to the applicant. I am of the view that in the circumstances of this case, which includes the nature of the complaint which I have found has no reasonable prospect of success, the applicant also has no reasonable prospect of establishing that the respondent did not adequately address his human rights complaint.
Order
21The Application is dismissed.
Dated at Toronto, this 20th day of June, 2016.
“Signed by”
Geneviève Debané
Vice-chair```