Kennelly v. Wilson, 2017 HRTO 1666

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William Kennelly

Applicant

-and-

Rodney Wilson

Respondent

DECISION

Adjudicator: Maureen Doyle

Date: December 15, 2017

Citation: 2017 HRTO 1666

Indexed as: Kennelly v. Wilson

APPEARANCES

William Kennelly, Applicant

Self-represented

Rodney Wilson, Respondent

Self-represented

Introduction

1The applicant filed an Application alleging that the respondent reprised against him with respect to his employment, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In Interim Decision, 2017 HRTO 547, which also dealt with the respondent’s request for production, 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.

3As explained more fully below, I find that the Application must be dismissed on the basis that it has no reasonable prospect of success under the Code. Even if I accept all of the facts alleged by the applicant as true, the applicant has not been able to point to any evidence of reprisal under the Code.

SUMMARY HEARING PROCESS

4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding and usually before a Response is filed, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

5The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.

6The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true, unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.

7However, and significantly, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine applicant is able to point to any information which tends to support his or her belief that he or she has experienced discrimination or reprisal under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence, or any evidence that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with the Code’s protections.

8As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 (“Forde”), for an Application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show a breach of the Code.

9Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the facts of this particular case.

FACTUAL BACKGROUND

10The applicant was employed in the respondent’s sign-making business, where he was required to use a chemical product. He was concerned about the safety measures employed at the respondent’s business when handling this product. In his Application, he describes his discussions with the respondent regarding the use of the chemical, which he believed he should only use with personal protective equipment. The employer had provided gloves and dust masks, which he felt were inadequate; he recounts feeling itching and burning eyes and a headache. He recounts asking the respondent to provide him with an appropriate mask or different work, and he states that the respondent refused to provide the appropriate mask, forbad him from using a mask he had brought to work, and threatened to terminate his employment. He states that the respondent advised he had no other work for the applicant and another probationary employee to do, and if they did not want to do the work, they might as well leave. The applicant states that the respondent often terminated workers’ employment, and that he and the other probationary employee continued “to work in unsafe conditions in fear of our job.” He complains that the respondent did not make available Material Safety Data Sheets (MSDS) regarding the chemical, as he should have done. He states that all he really wanted was a particular kind of mask and alleges that there is not even a health and safety bulletin board in the shop. He states that without access to an MSDS regarding the chemical, he is not even sure if the chemical is safe to work with in the way the respondent required, and he questions whether he received proper training to work with it. He states that the respondent is intimidating and loses his temper with staff. He states that he found this behaviour to be harassing.

11At the summary hearing, he stated that when he approached the respondent about using personal protective equipment for working with the chemical, the respondent was aggressive and told him he might as well go home. He stated that being reminded he was in a three-month probationary period at his work when he asked for protective equipment, was stressful. He stated that he was just asking for a level of comfort when working with a chemical about which he knew nothing, but the respondent constantly pressured him to comply with directions, without giving him proper information to assure him of the safety of the chemical and the work procedures. He stated that the problem is that the company is a “pyramid of power”, and that the respondent is the boss, oversees safety, performs the human resources functions, and is the owner.

12When I asked the applicant how he felt he had been reprised against according to the language of section 8 of the Code, he submitted that it was because he was forced to use a chemical which he did not believe was safe, under the threat of being sent home if he refused. He submitted that it all could have been dealt with had the respondent provided MSDS for the chemical. He submitted that he was reprised against for standing up for his rights, and refers to safety. He stated that he decided not to deal with the respondent, but to file this Application instead, and he “walked.”

FINDINGS

13Even if I accept the facts put forward by the applicant as true and provable, I must find that the Application stands no reasonable prospect of success under the Code. Even if I assume that the respondent intimidated the applicant and threatened him with job loss because of his stated safety concerns when using a particular chemical, I find that there is no reasonable prospect of success that the applicant would be able to establish that this was reprisal contrary to the Code.

14Section 8 of the Code provides as follows:

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

15The reprisal protections in the Code only apply to the actions of a respondent that are intended as a reprisal for any of the following: (1) claiming or enforcing a right under the Code; (2) instituting or participating in proceedings under the Code; or, (3) refusing to infringe the right of another person under the Code. See for example, Mirea v. Canadian National Exhibition, 2009 HRTO 32, Chan v. Tai Pan Vacations, 2009 HRTO 273, Noble v. York University, 2010 HRTO 878 at para. 31. To proceed with the Application, there must be a reasonable basis to believe that the applicant could establish that the respondent reprised against him for one of these three things. It is not clear how the applicant’s reprisal allegations are linked to one of these three things.

16The applicant does not claim that he tried to enforce any particular right under the Code in his dealings with the respondent. He does not, for example, allege that he has a disability for which he sought accommodation. Rather, in focussing on the reprisal provisions contained in section 8 of the Code in the summary hearing, he was clear that the rights he sought to enforce were with respect to health and safety.

17Similarly, aside from filing this Application, the applicant did not indicate that he instituted or participated in proceedings under the Code or that he refused to infringe a right of another person under the Code.

ORDER

18For the above reasons, the Application is dismissed.