Ruscetta v. BattleField Equipment Rentals, 2016 HRTO 858

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Silvestro Ruscetta

Applicant

-and-

BattleField Equipment Rentals (Toromont Industries)

Respondent

DECISION

Adjudicator: Keith Brennenstuhl

Date: June 29, 2016

Citation: 2016 HRTO 858

Indexed as: Ruscetta v. BattleField Equipment Rentals

APPEARANCES

Silvestro Ruscetta, Applicant

Self-represented

BattleField Equipment Rentals (Toromont Industries), Respondent

Paula Rusak, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability and reprisal or threat of reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). By way of remedy the applicant seeks damages in the amount of $2,000,000.00.

2At the hearing of this Application and after the applicant’s testimony was completed (he did not nor did he propose to call any witnesses) the respondent, citing Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, requested that the Application be dismissed on the basis that there is no reasonable prospect of success. This request was made on notice to both the Tribunal and the applicant. Both parties provided oral submissions in support of their positions.

3Having considered the evidence of the applicant, the arguments of the parties and the authorities presented, I find that the Application has no reasonable prospect of success and it shall be dismissed accordingly. My reasons for coming to this conclusion are set out below.

background

4The respondent rents, sells and repairs construction equipment. In addition it provides technical support for the said equipment to its customers.

5The applicant was hired on March 1, 2012 as a Road Service Technician. The job required the Applicant to go to customers’ premises to make repairs. While part of his duties might involve some lifting much of his work was technical support. Some of the customer calls amounted to simply hooking up a laptop to diagnose the problem at the customer’s premises. At night, the calls were much like tech support – the technician directs the caller to make certain moves on the computer in the hopes of resolving the issue.

6The applicant worked without incident for just over a year when on March 28, 2013 he had his first accident – he injured his left shoulder. He was working alone and there were no witnesses. He did not report this accident to his manager until 4 days after it occurred. At that time, the applicant provided a form letter dated April 1, 2013 and signed by a doctor which simply stated “Period of illness – April 1 – April 4, 2013.”

7The respondent offered the applicant modified work which included assisting the shop supervisor and providing online training to upgrade his skills. This modified work was part of an Early and Safe Return to Work Plan that was signed by the applicant when he reported back to work on April 1, 2013.

8The following week, a further note was received by the respondent from a different doctor, this time advising that the applicant required a further week of modified duties. A Functional Abilities Form (“FAF”) was also provided setting out a restriction of no lifting or work above the shoulder and not to operate equipment.

9On July 8, 2013, the applicant reported to the respondent that he had tripped on the shop floor, falling and hurting his right shoulder and that he pulled a muscle in his right arm. Apparently, there were no witnesses to the fall. On July 9, 2013 the Workplace Safety and Insurance Board (“WSIB”) health professional indicated that the applicant should remain off work for the rest of the week that he should be adhering to modified duties and that for the first two weeks his hours should be modified to 4 hours per day. On July 16, 2013 the applicant signed a RTWS Intervention Memo/Plan which outlined further restrictions and modified duties that the applicant had been given by the respondent to accommodate his shoulder injury. In this document, the Return to Work Specialist confirmed that the modified duties provided by the respondent were suitable.

10The respondent did not dispute that the applicant’s injuries were disabilities within the meaning of the Code.

CREDIBILITY

11In considering issues of credibility, throughout the course of the applicant’s testimony and in reviewing the documentary evidence, I was guided by the well-established principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), at pp. 356-357:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carries conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions, In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

12In Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230, the Tribunal stated at para. 54:

Evaluating the reliability and veracity of a witness’s evidence is a multi-faceted exercise, where a conclusion of credibility develops from various interrelated findings, such as whether, on a balance of probabilities, the evidence was sufficiently probable, logically connected to other points, and/or buttressed by independent evidence; as well as findings with respect to the state of the witness, such as candour or evasiveness, capacity to perceive and remember, and attitude towards the parties. A finding of lack of credibility or reliability with respect to one aspect of a witness’s testimony does not automatically render the entirety of the witness’s evidence as incredible or unreliable. As such, a tribunal is entitled to accept or reject some, all or none of a witness’s evidence: see Loomba v. Home Depot Canada, 2010 HRTO 1434.

13In short, I find that the applicant lacked any credibility. He consistently refused to answer even the simplest of questions even after I directed him to do so. He was evasive. Instead of answering “yes” or “no” to a question he insisted on elaborating and in so doing he was not responsive to the question. He was argumentative, at times hostile. At other times he was overly obsequious. He had a selective memory, generally only recounting matters that served his interest.

14He was disingenuous. He constantly complained that he did not know his rights under, or was not familiar with, the WSIB regime; despite having made over 30 claims with the WSIB over his career. He mentioned one of the claims was for a splinter in his finger. In his testimony he cited, from memory, specific sections of the relevant legislation. As part of his modified duties the applicant did extensive online training. Allegedly, this led to carpal tunnel syndrome for which he made a WSIB claim. The claim was denied and it is now on appeal. This is not an uniformed applicant when it comes to WSIB matters.

15To the applicant this process was a game. He said as much. He opened his closing statement with: “We know this is a game of chess. If you make the wrong move, you lose.”

16The applicant embellished his evidence. For example, throughout his Application and during his testimony, he referred to himself as a Heavy Duty Equipment Mechanic. It would not be unreasonable to conclude that this job would entail strenuous physical activity and heavy lifting and that the applicant would require significant accommodation to perform this job. The evidence, however, was that the applicant was hired as, and performed the duties of, a Service Road Technician. In this capacity, the applicant would try to repair equipment on site, if he was able to, otherwise, he would determine the extent of any repair, provide customers with estimates for parts and labour and report back to his supervisor and/or call in a mechanic to effect the repair. When asked to explain why he referred to himself as a Heavy Duty Equipment Mechanic rather than Service Road Technician, the applicant shuffled through his papers, refusing to answer the question. The applicant would often evade answering a question by responding with “I would have to review my papers.”

17The applicant was misleading. He complained that the respondent denied him time off work to go to medical and physiotherapy appointments. However, the evidence does not support this. He was granted time off whenever he asked for it. Even when he was working reduced hours, he was given time off notwithstanding the recommendation of the WSIB representative that he take his appointments before or after his reduced hours of work.

Assignment of work beyond restrictions

18The applicant took the position that following his first injury and prior to his second injury he was forced to perform duties which were beyond his physical limitations. The applicant stated that, despite the restrictions outlined in the FAF, he was required to do service calls, sometimes after hours.

19The applicant was of the view, and quite adamant about it, that he was restricted from doing service calls and that this restriction was documented. When challenged to point to any document, medical, FAF or otherwise, that set out this restriction the applicant was unable to find any. Ultimately the applicant admitted that he was able to do his regular job including service calls as long as he stayed within his limitations. I find that there was no restriction on doing service calls.

20The applicant took the position that following his first injury and prior to his second injury, the respondent required him to work full-time hours rather than the restricted modified hours. Again the applicant was challenged to point to any document that indicated that he was to work modified hours only and again he could not point to any. The evidence is clear however that the applicant was limited for periods of 4 hours per day and 6 hours per day but this was following his second injury. There is no suggestion that the respondent required the applicant to work beyond those restricted hours during those periods.

21Following the July 8, 2013 accident, the applicant indicated that he was required to do an inventory count which was outside his medical restrictions, in that he had to open and close heavy drawers which contained the inventory. When he complained that he was having difficulty opening the drawers, he was immediately re-assigned. This is hardly a case of being forced to do duties beyond the applicant’s restrictions.

22The applicant claims that he was required to do some painting which he felt was outside his limitations because it involved repetitive movement. The evidence reveals, however, that he refused to do the job precisely because he felt that it was outside his medical restrictions. There appears to have been no consequences for refusing. Again, in my view, this is not a case of the applicant being forced to do work outside his limitations.

23The duty to accommodate under the Code requires an employer to provide modified work to an employee that is within the restrictions arising from a disability. Once having done that, however, it is the employee’s responsibility to ensure that he works within those restrictions. I do not find that the respondent employer violated the applicant’s rights by forcing him to do work that was beyond his restrictions.

Discrimination and harassment

24The applicant raised allegations about certain actions or inactions taken by his managers that, in his view, constituted a pattern of harassment. However, he did not provide any credible evidence that would demonstrate a link between the managers’ conduct that he complains of and the prohibited ground of disability.

25The applicant writes in the narrative of his Application: “I also believe that the harassment has progressed to both targeting and even as much as mobbing by other staff and managers at Battlefield”; “I believe this medical information was ignored…”; “I strongly believe I was injured because I was placed in an unsafe work environment…”; “It was after voicing my continued concerns with respect to ‘no modified duties’ I believe I was given the Notice of Warning and Discipline”; “It is my belief that I was placed in the negative environment as punishment for being injured at work”; “It is my opinion that he was saying I would intentionally attempt to physically harm myself at work.”; “Why was this comment directed at me?”; Why would he make such negative comments?”; “Was this co-incidental?”; “I believe this is an attempt to cover up the harassment I have been receiving.”; “It is my belief that as a result of no modified work being provided to me after my initial injury, my left shoulder was unable to heal properly.”; and, “I believe this was a direct attack towards my family as well”.

26In his opening statement, the applicant stated: “I firmly believe that the second injury occurred because I was not provided proper modified duties initially.” In his closing statement after his evidence was complete, he stated: “Its only speculation but I didn’t get the two job interviews for the jobs I applied for because of my disabilities”; “I strongly believe I was targeted because I was hurt”; “I therefore strongly believe the Exhibit 40 was issued to me to begin the termination process because of my disabilities”; “…my belief that my wife was targeted as well”; and, “I believe when I made the formal complaint in January that was the nail in the coffin.”

27The applicant identifies with a prohibited ground under the Code, disability, and alleges that he has been targeted and harassed. However, the applicant has to do more than point to his disability and adverse treatment to establish a case of discrimination. He must show a link between his disability and the adverse treatment.

28I do not want to dwell on the applicant’s credibility because even if the applicant’s allegations were credible, I heard no evidence of any connection between his alleged mistreatment and the Code ground of disability. The applicant’s evidence consists of suspicions, speculation, beliefs and his own feelings.

29I have therefore concluded that there is no reasonable prospect of success with respect to the applicant’s harassment allegations.

Reprisal

30Section 8 of the Code sets out what constitutes reprisal under the Code:

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 the right of another person under this Act, without reprisal or threat of reprisal for so doing.

31In Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 the Tribunal stated that “Reprisal under s. 8 of the Code must be a reprisal for the assertion of human rights and there must be an intention to reprise for that reason.”

32It is clear that the Application identifies a number of the respondent’s actions which were, in the applicant’s opinion, unwarranted or unfair. However, the Application does not allege that any of the respondent’s actions were in reprisal for the applicant asserting that his human rights had been violated and nor did the applicant put forward any evidence with respect to reprisal.

33For these reasons I find that there is no reasonable prospect of success with respect to the reprisal allegation.

Order

34For the reasons set out above, the Application is dismissed as having no reasonable prospect of success.