Rouyer v. Toronto Atmospheric Fund, 2017 HRTO 1534

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Charles-Antoine Rouyer Applicant

-and-

Toronto Atmospheric Fund Respondent

INTERIM DECISION

Adjudicator: Josée Bouchard Date: November 21, 2017 Citation: 2017 HRTO 1534 Indexed as: Rouyer v. Toronto Atmospheric Fund

APPEARANCES

Charles-Antoine Rouyer, Applicant Self-represented

Toronto Atmospheric Fund, Respondent Michael Klug, Counsel

INTRODUCTION

1The applicant filed this Application on March 4, 2016, alleging 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”).

2The respondent filed a Response on August 31, 2016.

3On February 8, 2017, the Tribunal issued a Case Assessment Direction (“CAD”) directing a summary hearing be held to determine whether the 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.

4On February 20, 2017, the applicant filed a Reply.

5The Tribunal held the summary hearing on September 25, 2017. On September 27, 2017, the Tribunal issued a second CAD directing the applicant to deliver to the respondent and file with the Tribunal the results of the pulmonary tests he took over the summer 2017. The Tribunal also directed the parties to deliver to each other and file with the Tribunal their written submissions related to the pulmonary test results and their relevance to the Application.

6On September 28, 2017, the applicant filed the results of the summer 2017 pulmonary tests and his written submissions. The respondent filed written submissions on October 2, 2017. The applicant filed further submission on October 17, 2017.

7This Decision addresses whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed.

THE PARTIES

8The respondent is a corporation located in Toronto. On December 15, 2014, the respondent offered to the applicant a full-time position (37 hours per week) as Communications Manager to commence on January 12, 2015 subject to a written employment contract. The employment contract provided that the applicant would be subject to a probationary period of 3 months.

9On March 6, 2015, the respondent terminated the applicant’s employment before the end of his probationary period.

BACKGROUND

Applicant’s Submission

10The applicant submits that after one month of work, he noticed symptoms of environmental sensitivities. He maintains that he began coughing more frequently while working at the respondent’s offices. He complained about the air quality in the respondent’s offices to his supervisor and shortly thereafter, the respondent terminated him under pretence that his performance was not acceptable.

11The applicant maintains that as Communications Manager, he accomplished a tremendous amount of work in a very brief period. The following is a non-exhaustive list of what he considered as his accomplishments:

a. he launched the respondent’s website;

b. he improved the website;

c. he created and maintained an editorial calendar for the blog and a monthly bulletin;

d. he completed the first draft of a communication plan;

e. he was responsible for an increase in followers for the Twitter account; and

f. he created internal communications tools.

12The applicant explained that he has environmental sensitivities that were diagnosed through blood tests conducted when he was a teenager living outside of Canada. The applicant did not produce the results of the tests but filed with the Tribunal a letter from his physician, dated February 7, 2017, stating:

This letter is to confirm that Mr. Rouyer has had respiratory complaints in the past. It was recommended that he go for pulmonary function testing in November 2015, and it was reported by testing in France as a teen that he has allergies to cat, chalk and dust mites although I do not have this report. Given that his brother has a diagnosis of asthma, it would not be unexpected should he have mild asthma as well. We are sending him for Pulmonary Function Tests now.

13The applicant stated that he did not attend the pulmonary function tests in 2015.

14The applicant maintains that he is still allergic to cats and dust mites and he noticed an increase in his cough while working at the respondent’s office. The applicant explained that his specialty fields are health and environment. When his symptoms began, he conducted an informal environmental scan. He noticed that there were no recent changes at his home or at the university where he taught. The only new factor in his life was his position with the respondent and his extended presence in the office.

15As a result, the applicant first informally talked with colleagues. A colleague told him that he also had breathing difficulties. He also knew of another employee who had breathing issues when working at the respondent’s. In February 2015, the applicant mentioned a few times to his supervisor that he had a cough while working at the respondent’s. On February 23, 2015 he sent the following email to his supervisor:

Just to follow-up on our discussion last week.

As I have mentioned a couple of times, I have noticed since starting to work at [the respondent’s] that I tend to get a dry cough when I am in the office.

Recently I have noticed that the cough gets actually worse if I am sitting at the back (Lounge area).

I am wondering if other staff have had similar or other air quality concerns.

And so for now – I will try to work remotely a bit more – and that will also allow to get more sunlight – so valuable esp. during the winter months!

Any thoughts/suggestions?

16The applicant’s supervisor responded by suggesting that he send an email to colleagues to see if they are experiencing similar issues. The supervisor also asked the applicant if he is allergic to down feathers because it is a common allergy and she believed the cushions in the lounge have down feather fillings. The applicant replied that he had heard informally some concerns from his colleagues but as a new staff, he was hesitant to raise the issue organizationally. He also clarified that he is not allergic to down feathers but has some allergies to cats and dust mites.

17The applicant indicated that he did not provide medical proof to his employer because he was not asked and he did not have time as he was terminated shortly after this interaction. The applicant stated that he was told there had been studies done regarding the air quality in the office and that the air was fine. The applicant never saw the studies.

18The applicant noted that he began working from home approximately one day a week. He did not notice a reduction of his cough at that point.

19The applicant recalled that on March 6, 2015, he arrived at the office at the beginning of the afternoon. He had been working from home that morning. The Chief Executive Officer (“CEO”) called him into her office and noted that he was not at the office in the morning. The CEO reminded him that he was still on his probation period and told him that his performance was too weak to remain at the respondent’s. The applicant maintains that he asked what the standards were and the CEO responded that she did not have to provide that information to him. The respondent terminated the applicant’s employment that day.

20The applicant believes that his disability was a factor in the termination. In his view, he had accomplished so much work in a brief period that his performance could not be the real reason for the termination.

21The applicant maintains that his coughing diminished after his termination.

22On September 28, 2017, the applicant filed with the Tribunal the results of pulmonary tests conducted on June 12, 2017. The results confirm that the applicant’s pulmonary functions related to those tests are normal. The applicant also filed a letter dated September 27, 2017 from a physician confirming that he has been dealing with grief since 2015.

Respondent’s Submissions

23The respondent submits that the Application should be dismissed because it has no reasonable prospect of success. It maintains that on March 6, 2015, it terminated the applicant’s employment, before the end of the probationary period on the basis that his job performance did not satisfy the respondent's requirements and because ultimately he was not suitable for the position.

24The respondent argues that the applicant will not be able to prove that he suffered from a disability at any material time or that there is a connection between the alleged disability and his termination.

25The respondent notes that the applicant presented no medical documentation to support that he suffered from a disability while employed with the respondent. The respondent agrees that the applicant mentioned his dry cough associated with being at work to his supervisor but his concerns were accommodated without controversy. The respondent also notes that the issues of air quality and dry cough were raised on February 18, 2015, weeks prior to the applicant’s dismissal.

26The respondent indicates that the applicant produced two inconclusive medical documents during the proceeding. The first is a note from a physician, dated February 2017, in which she refers to the applicant’s “past respiratory complaints […] and it was reported by testing in France as a teen that he has allergies to cat, chalk and dust mites although I do not have this report.” The physician recommended that the applicant undergo pulmonary testing in November 2015 approximately 8 months after his termination. The applicant never attended that pulmonary testing. The second medical note provides the results of pulmonary testing from the summer 2017. The results are normal. The respondent submits that this supports its position that the applicant will not be able to establish that he suffered from a disability at any material point in time.

27The respondent further submits that even if the applicant could show that he had a disability while in its employment; such alleged disability had nothing to do with why his employment was terminated.

28The respondent maintains that it terminated the applicant’s employment because, during his short period of employment with it, he demonstrated a lack of communications management and strategic planning experience and/or ability and because he consistently displayed an argumentative attitude and was unreceptive to, and hostile towards, supervision.

29With respect to the applicant’s dry cough and his expressed concern about the air quality at the office, the respondent contends that this formed no basis for the respondent’s decision to terminate the applicant’s employment. On February 23, 2015, the applicant advised his supervisor for the first time that he “tends to get a dry cough when I am at the office,” and he advised her he “will try to work remotely a bit more” which would also allow him “to get more sunlight” that is “so valuable esp. during the winter months!”. The applicant’s supervisor did not object to his decision to work at home more frequently, and she agreed to canvas other employees, on his behalf, about whether others had concerns about air quality. Other employees did not have concerns about air quality.

30The respondent maintains that the applicant worked more frequently at home after this. As a result, it accommodated the applicant’s dry cough, even though it had no legal obligation to do so. The applicant made no further request for accommodation of his dry cough.

31The respondent further argues that the dry cough does not amount to a “disability” for the purposes of the Code. It also maintains that while employed, the applicant never suggested that his dry cough (or any alleged allergy, environmental sensitivity or “respiratory problem”) comprised a disability that entitled him to any accommodation at work. The respondent notes that a dry cough is not an unusual condition in the winter in Toronto. The respondent also argues that the applicant failed to produce any medical evidence to suggest a possible link between the dry cough and the work environment.

DECISION AND ANALYSIS

No Reasonable Prospect of Success

32The nature of a summary hearing has been set out in Dabic v. Windsor Police Services, 2010 HRTO 1994 at paras. 7 - 9. The focus of a summary hearing is on whether, assuming all the allegations to be true, there is a reasonable prospect that the applicant can show a link between what happened to him and the prohibited ground of disability or race.

33The Tribunal has stated on several occasions that it does not have a general power to deal with allegations of unfairness. See for example: Badvi v. Voyageur Transportation, 2011 HRTO 1319 at para. 6, and Watt v. Cambridge (City), 2014 HRTO 218 at para. 6. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race or disability. Unfair treatment is not discriminatory unless there is proof that one or more of these characteristics were a factor in the treatment the applicant experienced. It is readily acknowledged that various experiences of unfairness, not specifically defined as discrimination in the legal sense, can result in significant negative financial and emotional consequences to one degree or another.

34The test the Tribunal applies at this stage is whether the case has no reasonable prospect of success, which involves assuming the applicant’s version of events to be true, absent clear evidence to the contrary.

Discrimination Based on Disability

35Based on the particular facts of this case, I find that the allegations of discrimination with respect to employment based on disability have no reasonable prospect of success.

36I find that the applicant failed to point to any evidence, or any evidence that may be reasonably available to him, to establish that he had a disability while employed by the respondent.

37Disability is defined under section 10 of the Code and includes:

Any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device […]

38Not all illnesses have been found to constitute a disability under the Code. See Anderson v. Envirotech Office Systems, 2009 HRTO 1199. In Ouimette v. Lily Cups Ltd. (1990), 1990 CanLII 12497 (ON HRT), 12 C.H.R.R. D/19, the Board of Inquiry found that the flu, a temporary illness which is experienced by everyone from time to time, is not a disability. The Board found that to include commonplace illnesses under the ground of disability would have the effect of trivializing the Code’s protections.

39Even where the courts have applied a broad and contextual definition to the notion of disability, everyday illnesses have been excluded. On this point, the Supreme Court of Canada in Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27 states:

As the emphasis is on obstacles to full participation in society rather than on the condition or state of the individual, ailments (a cold, for example) or personal characteristics (such as eye colour) will necessarily be excluded from the scope of “handicap” […]

40The applicant is unable to point to any medical evidence in his possession or that may be reasonably available to him to support his claim that he suffered from pulmonary conditions or environmental sensitivities while employed with the respondent. The only medical information that the applicant provided is a note from a physician dated in 2017 that states that he has had respiratory complaints in the past and that testing had been arranged for him in 2015. The applicant did not attend such testing. The second medical document provides results of pulmonary testing that the applicant took in the summer 2017, well after he was terminated. The test results are normal.

41In addition, the applicant’s undiagnosed dry cough did not create an obstacle to his full participation in the workplace; the applicant continued to work without requesting further accommodations. The applicant failed to point to any evidence that his dry cough was more than an ailment or affliction that amounted to a disability. In addition, the applicant could not point to any evidence, or any evidence that may be reasonably available to him, to show a connection between his work environment and the alleged dry cough.

42As the applicant is unable to point to any evidence of a disability, the Tribunal finds that the applicant would be unable to prove that he was adversely treated because of a disability.

Perceived Disability

43Notwithstanding my conclusion that the applicant will be unable to establish that he has a disability, I find that this is not determinative of the summary hearing. The applicant mentioned at the summary hearing that the respondent discriminated against him because it thought that the applicant’s work performance was negatively affected by the fact that he worked remotely. He maintains that he was forced to work remotely because of his sensitivity to the air quality in the workplace. On February 23, 2015, the applicant highlighted the coughing he was experiencing in the office, raised the issue of the air quality in the office, mentioned to his supervisor that he would “try to work remotely a bit more” and on March 6, 2015 he was terminated. During the termination meeting, the applicant alleges that the CEO commented on his absence from the office that morning.

44The parties did not make submissions on whether a perceived disability may have contributed to the reasons for the applicant’s termination. However, the applicant is a self-represented litigant and it would be in my view inappropriate to dismiss the Application as a whole on the ground that he failed to argue that a perceived disability may have been a contributing factor in the decision to terminate him. I cannot find that these allegations concerning perceived disability have no reasonable prospect of success. Pursuant to Rule 19.6A, where the Tribunal decides not to dismiss an Application following a summary hearing, it need not give reasons and I find it unnecessary to comment further.

Order

45The Tribunal orders as follows:

a. The Application shall continue regarding the issue of whether the respondent discriminated against the applicant with respect to employment because of a perceived disability;

b. The applicant’s allegations of discrimination with respect to employment because of a disability are dismissed.

Dated at Toronto, this 21st day of November, 2017.

“Signed by”

Josée Bouchard

Vice-chair