MacLean v. B&T MacFarlane Ottawa Limited, 2017 HRTO 1668

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tim MacLean

Applicant

-and-

B&T MacFarlane Ottawa Limited

Respondent

DECISION

Adjudicator: Mark Hart

Date: December 15, 2017

Citation: 2017 HRTO 1668

Indexed as: MacLean v. B&T MacFarlane Ottawa Limited

APPEARANCES

Tim MacLean, Applicant

Self-represented

B&T MacFarlane Ottawa Limited, Respondent

Larissa Volinets Schieven, Counsel

1This is an Application filed on October 17, 2016, alleging discrimination with respect to employment because of disability and record of offences contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondent filed a Request for Summary Hearing requesting that the Application be dismissed as having no reasonable prospect of success. By Case Assessment Direction dated August 11, 2017, this Request was granted and this matter was referred for a summary hearing.

3The summary hearing proceeded by teleconference on October 10, 2017, at which time I heard the parties’ oral submissions. I also have considered the materials filed by the parties for the purpose of the summary hearing, as identified by me at the outset of the hearing.

4The applicant commenced employment with the respondent on April 15, 2016. Shortly after commencing his employment, the applicant had shoulder surgery on May 5, 2016, and returned to work shortly after his surgery. At the summary hearing, the applicant stated that his restrictions following surgery included no lifting of anything heavy and a lack of mobility in his shoulder, which made it complicated to climb in and out of equipment and demonstrate features and functions of certain equipment for clients. The applicant states that these restrictions remained up until the time his employment was terminated on September 23, 2016.

5The applicant states that he was told by the owner of the respondent company not to worry and that they would help him out. However, he alleges that he was told by the owner’s brother, who is the vice-president of the respondent company, that he was “useless”. This allegation is not set out in the Application as filed with the Tribunal or in any material filed by the applicant for the purpose of the summary hearing, and was raised for the first time in the applicant’s oral submissions at the summary hearing. Given that this allegation is not raised in the Application and that no prior notice of this allegation was given to the respondent, I will not consider this allegation further.

6On July 20, 2016, the applicant was physically assaulted by a sales representative of a tool supplier who had come to the respondent’s property at the applicant’s request to address an issue that the applicant had regarding a warranty on a personal piece of equipment. The applicant was assaulted with a metal rod to his left elbow. The applicant underwent emergency surgery as a result of the injury he sustained. The applicant returned to work on July 22, 2016, against medical advice. The applicant states that the injury to his left elbow did not result in any additional restrictions beyond the restrictions he already had due to his shoulder surgery.

7In July 2016, news outlets in the Ottawa area reported that a false advertisement had been placed on Kijiji, claiming to be giving away children’s toys for free. In fact, the address at which people were told to pick up these “free toys” was a daycare being operated out of a home in the neighbourhood where the applicant and his spouse resided. The ad resulted in people coming to the daycare and removing the children’s toys and causing damage to the property of the daycare owner. The daycare owner subsequently posted her own ad on Kijiji asking that the toys be returned, but only recovered some of the smaller toys that had been removed.

8The placement of the false advertisement was investigated by the police. On September 21, 2016, it was reported in the news that criminal charges had been laid against the applicant and his spouse for falsely placing this advertisement. The charges attracted significant media attention in the Ottawa area. The applicant denies that he or his spouse placed the false advertisement, and states that they have Wi-Fi for their home computer that is not password protected. The applicant states that the criminal charges ultimately were withdrawn.

9The applicant’s employment was terminated by the respondent on September 23, 2016, two days after the news reports of the criminal charges. In its Response, the respondent raises a number of alleged issues that contributed to its decision to terminate the applicant’s employment, but states that the news report regarding the criminal charges was the final incident that led to termination.

10The applicant disputes the issues alleged by the respondent in its Response. It is not the purpose of a summary hearing to resolve these kinds of factual disputes. That is a matter best left for a hearing on the merits.

11However, it is the purpose of a summary hearing to assess whether the applicant has a reasonable prospect of success in establishing that his disability or record of offences was at least a factor in the respondent’s decision to terminate his employment, based on the evidence that the applicant has or that is reasonably available to him.

12At the summary hearing, I asked the applicant to identify the basis upon which he is alleging that his disability was a factor in decision to terminate his employment. In response, the applicant relied upon the statements made by the owner’s brother as described above, which the applicant says continued until about a week or so prior to the termination of his employment. As stated above, these allegations are not contained in the Application or in any material submitted by the applicant for the purpose of the summary hearing, and I will therefore not consider them.

13At the summary hearing, the applicant further stated that, with some of the hand-held product sold by the respondent company, he needed to be able to demonstrate the equipment to show clients how the equipment worked. He states that he could not really hang onto some of this equipment due to his shoulder and elbow injuries. He alleges that when this would happen, he could see the owner and his brother standing in the background looking disappointed and shaking their heads, which made it very tough for him. The applicant agreed that this allegation also is not contained in his Application or in any material filed for the purpose of the summary hearing, and was raised by him for the first time in his oral submissions at the summary hearing with no prior notice to the respondent. Once again, in these circumstances, I will not consider this allegation.

14The applicant further relies upon a comment alleged to have been made by the owner’s brother at the time he was terminated, whereby he alleges that the owner’s brother said, “first the assault, then the charges, what next?” When asked at the summary hearing to explain the basis upon which he was relying on this comment to support his allegation that his disability was a factor in the termination, the applicant was unable to provide any explanation. In my view, on its face, this alleged comment is not about the applicant’s injuries or disability themselves, but rather about the fact of an assault occurring on the respondent’s property relating to a personal, non-work related issue, followed by criminal charges relating to a non-work related issue. I do not see any basis in this alleged comment to support that the applicant’s disability or restrictions were a factor in the termination decision.

15While the applicant stated his work restrictions as part of his oral submissions at the summary hearing, the respondent states that it received no specific medical documentation from the applicant regarding these work restrictions. On the basis of his own statements, the applicant stated that he was told by the owner not to worry about his limitations and that they would work it out. The applicant’s own submission was that his work restrictions did not change from the time of his shoulder surgery in early May 2016 until the termination of his employment on September 23, 2016. In these circumstances, and given the intervening and proximate event of the news reports of the criminal charges two days before his termination, I find that the applicant has no reasonable prospect of success in establishing at a hearing that any work restrictions he may have had was a factor in the termination decision. Indeed, this is not alleged in the Application.

16As no other evidence was raised by the applicant to support his allegation that his disability was a factor in the respondent’s decision to terminate his employment, I find that the applicant has no reasonable prospect of success in proving this allegation at a hearing. Accordingly, this allegation is dismissed as having no reasonable prospect of success.

17With regard to the applicant’s allegation of discrimination because of “record of offences”, the ground of “record of offences” is defined under s. 10 of the Code to mean one of only two things: (1) a conviction under the Criminal Code for which a pardon has been granted; or (2) a conviction under a provincial enactment. In the instant case, the applicant was charged with offences under the Criminal Code. He was not convicted of these offences and obviously has not received a pardon. As a result, this ground is simply unavailable to the applicant. Accordingly, I further find that this allegation also has no reasonable prospect of success.

18As part of his submissions, the applicant alleged that the owner’s brother has actually been convicted of certain criminal offences, and yet he continues to be employed by the respondent. Whether or not the owner’s brother would be able to claim any protection under the Code in relation to any criminal convictions he may have is not the issue before me, and does not change the fact that the applicant’s circumstances simply do not fall within the definition of “record of offences” under the Code. While I appreciate the applicant’s view that it may be unfair that the owner’s brother continues to work for the respondent when he is alleged to have actual criminal convictions, while the applicant was fired merely for being charged, this Tribunal does not have the jurisdiction to remedy general allegations of unfairness that are unconnected to a Code right.

ORDER

19For all of the foregoing reasons, the Application is dismissed as having no reasonable prospect of success.