Whilby v. Corporate Express Canada, 2017 HRTO 1298

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Whilby Applicant

-and-

Corporate Express Canada Inc. Respondent

INTERIM DECISION

Adjudicator: Jacek Janczur Date: October 3, 2017 Citation: 2017 HRTO 1298 Indexed as: Whilby v. Corporate Express Canada

APPEARANCES

Michael Whilby, Applicant Tanya N. Howell, Counsel

Corporate Express Inc., Respondent Donna D’Andrea, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Case Assessment Direction (“CAD”), the Tribunal directed that a summary hearing be held to address whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed. The Tribunal noted that there appears to be no connection between the allegations against the respondent and a Code-protected ground; and the issues that the applicant is raising do not appear to fall under the Code. I heard the parties' submissions on July 21, 2017. For the reasons below I have decided that the Application should proceed.

FACTUAL BACKGROUND

3The applicant was an employee of the respondent from December 12, 2014 to March 10, 2016 when his employment was terminated.

4At the time of his termination, the applicant had been disciplined a number of times for different infractions of company policy.

5The applicant sustained a workplace injury on July 23, 2015.

6The applicant alleges that he was not properly accommodated subsequent to his injury and that this impacted on his service levels which were a factor in his termination.

7The respondent contends that the applicant was terminated for failure to follow company policy.

Analysis and Decision

8The Tribunal’s jurisdiction is limited to enforcement of the Code. To fall within the Tribunal’s jurisdiction, an application must contain allegations that connect a respondent’s conduct to one or more prohibited grounds of discrimination. The Application and the applicant’s submissions deal with allegations of discrimination on the basis of disability and reprisal.

9In order to proceed beyond the summary hearing stage, the applicant must be able to point to evidence he would be able to call in a hearing that could establish a link between the actions of the respondent and the prohibited ground of disability and reprisal cited in the Application.

10At the summary hearing stage, the facts as alleged by the applicant are assumed to be true and the Tribunal must be sensitive to the limitations on the availability of evidence to the applicant. In addition, the Tribunal will not dismiss an application simply because the respondent has an alternative explanation of events.

11As noted above, for the purposes of a summary hearing, the Tribunal must assume the facts as alleged by the applicant to be true. Assuming the applicant’s version of events to be true, I am not persuaded that the Application stands no reasonable prospect of success. In my view, the dismissal of the applicant when he had sustained an injury and was not properly accommodated could provide evidentiary support for a discriminatory decision. I appreciate that the respondent has offered a non-discriminatory explanation of the reasons for the applicant’s dismissal. Whether or not the applicant’s version of events is ultimately accepted or whether or not the respondent’s alternate explanation is found to be credible are matters to be determined at an in-person hearing on the merits.

12While it may be difficult for the applicant to prove discrimination if the Application proceeds to hearing, it cannot be said at this stage that the Application has no reasonable prospect of success.

order

13Accordingly, the Application will proceed. The respondent is directed to advise the Tribunal whether it is willing to engage in mediation within seven days of the date of the decision.