Vidale-Dobbin v. 1626269 Ontario Inc., 2017 HRTO 1716

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lydia Vidale-Dobbin

Applicant

-and-

1626269 Ontario Inc. formerly operating as Impulse Learning Centre

Respondent

DECISION

Adjudicator: Laurie Letheren Date: December 29, 2017 Citation: 2017 HRTO 1716 Indexed as: Vidale-Dobbin v. 1626269 Ontario Inc.

APPEARANCES

Lydia Vidale-Dobbin, Applicant Self-represented

1626269 Ontario Inc. formerly operating as Impulse Learning Centre, Respondent Ari A. Lokshin, Counsel

Introduction

1In this Application, the applicant alleges that she experienced a breach of her rights as a person with a disability when the respondent terminated her employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). She alleges that the respondent terminated her employment after she returned from a medical leave because it was assumed she could not perform the duties of her job.

2The respondent denies the applicant’s allegation and submits that the decision to terminate the applicant was solely the result of the agreement reached with the purchaser of the respondent business just prior to when the applicant was terminated.

3The hearing of this Application was held on October 26, 2017, during which I heard evidence from the applicant and her witness, and from the respondent’s witnesses, the business owner and her husband.

Summary of the Evidence

4Lydia Vidale-Dobbin, the applicant, testified that she started working for the respondent in September 2015 when she was hired by the previous owners of the business. It was her evidence that Afrouz Sarmadi (“Ms. Sarmadi”) and Majid Ganjali (“Mr. Ganjali”) had purchased the business and became her employers in November 2015. She had worked full-time as the supervisor of the daycare.

5She testified that she was hospitalized on September 28, 2016, for an emergency medical procedure. She was in the hospital until October 3, 2016; her friend, Susan Tom, had communicated with Mr. Ganjali about her condition while she was in the hospital.

6She returned to work on October 17, 2016. It was her evidence that on that day Mr. Ganjali had told her he was cutting her hours effective that day and indicated that they would talk about it later; however, the discussion never took place and her hours of work remained the same. She testified that when she returned on October 17, 2016, she had no restrictions and she was able perform all her work duties as a supervisor, although she had some limitations to bending and she had a grab stick to retrieve items from the floor. It was her evidence that she never discussed any restrictions or limitations with Mr. Ganjali or Ms. Sarmadi but that Mr. Ganjali would have seen her at work after she returned and he had on occasion asked her how she was. She stated that she assumed Mr. Ganjali would have discussed what he had observed about her with Ms. Sarmadi since they were married and were business partners. She stated that she had a letter that her doctor had written about her medical condition. She had not shown this letter to Mr. Ganjali or Ms. Sarmadi. She had placed the letter in her personnel file herself. This letter was not part of her evidence.

7The applicant’s witness, Susan Tom, testified that she had sent Mr. Ganjali a number of text messages to advise him that the applicant was in hospital and receiving treatment. She stated that she would not have given Mr. Ganjali or Ms. Sarmadi any information about the applicant’s condition as it was not her place to provide such information.

8The applicant’s evidence was that she continued her work as normal until October 28, 2016, when near the end of her working day she was called into a meeting with Mr. Ganjali and Ms. Sarmadi. She agreed that Ms. Sarmadi had entered the meeting room after she was already seated. During this meeting she was given a letter of termination. She stated that she asked them why she was being terminated and Mr. Ganjali responded that there was someone who was interested in purchasing the business and they were going to sell it. It was her evidence that she responded to Mr. Ganjali by stating that she had always been a good employee and that they should have at least informed her that they were selling the business.

9She stated that as she exited the meeting she told Ms. Sarmadi and Mr. Ganjali that she would call the labour board and that Ms. Sarmadi said, “Look at you, you cannot even bend or walk”. It was her evidence that Mr. Ganjali nudged Ms. Sarmadi which she interpreted to be Mr. Ganjali’s indication to Ms. Sarmadi that she should be quiet. The applicant stated that at that point she told them that an employer has a duty to accommodate an employee.

10The applicant stated that when Ms. Sarmadi said this to her she did not believe that they were actually selling the business but that they wanted to terminate her because they believed she could not perform her job. She testified that she was not privy to all of the respondent’s finances but had been aware that the respondent had received a government grant. She was also aware that the number of children enrolled at the daycare had gone down and the respondent had been doing a lot of advertising to try to increase enrollment but had not been too successful.

11Mr. Ganjali testified that his wife, Ms. Sarmadi, owned the business and he was the internal manager who was responsible for the business’ finances and operations. The applicant reported to him.

12He testified that in September 2016 there were only five children who were enrolled full-time at the respondent daycare and in October they learned that there would be only three children enrolled full-time.

13The respondent’s financial statements were introduced into evidence and they showed that in 2015 and 2016 the respondent was operating at a significant deficit. He stated that he and Ms. Sarmadi decided to sell the business in mid-September 2016 and that a buyer showed interest in the business in October 2016. In late October 2016, there were negotiations with the buyer who wanted to fill spots with children she had on lists from her other daycare business; she wanted to change the signage and the décor; and to have full access to the daycare facility beginning in late October 2016. The share and asset purchase agreement was entered into evidence. A clause of this agreement states that the vendor warrants that all employees except two, who are named, will have been terminated and the vendor was responsible to pay the terminated employees all outstanding pay. The applicant was not named as an exception to the termination of all employees.

14Mr. Ganjali testified that he had made an arrangement with a friend, who was a supervisor of another daycare and who had previously worked for him as a consultant on how to promote his business, to work as a supervisor for the respondent during the time the share and asset purchase agreement was being finalized. This friend had agreed to work for a much lower rate of pay than the applicant had been paid.

15Mr. Ganjali testified that he did not have any concerns about the applicant’s ability to do her job as a supervisor after she returned from her medical leave on October 17, 2016, and he had never witnessed her having any difficulties in lifting and bending when doing her job. He testified that the applicant had never informed him of any limitations or restrictions. It was his evidence that the respondent had no choice but to terminate the applicant. He stated that when the purchaser advised that it wanted to use its own supervisor who would work without cost to the respondent, and when his friend offered to work for the interim period at half the cost, he and Ms. Sarmadi decided they had to terminate the applicant.

16It was Mr. Ganjali’s evidence that Ms. Sarmadi had not said anything about the applicant’s ability to bend or walk and that there had been no mention of the applicant’s physical condition during the meeting when the applicant was given the termination letter.

17Afrouz Sarmadi testified that although she was the owner of the respondent business, she was not involved in the day-to-day operations as she works full-time as an elementary school teacher. She stated that between October 17 and October 28, 2016, she did not see the applicant or correspond with her in any way. She stated that she had heard no complaints about the applicant’s performance and had no complaints herself.

18She testified that in 2016 the respondent business was in a poor financial state and they decided to sell. She stated that on October 26, 2016, she and Mr. Ganjali talked with a potential buyer. Ms. Sarmadi’s evidence about the share and asset purchase agreement was consistent with that of Mr. Ganjali. It was also her testimony that the buyer wanted to bring in her own supervisor and that all employees except those who spoke Russian and knew the community were to be terminated as part of the purchase agreement. It was her evidence that the buyer’s request was the reason why they had terminated the applicant’s employment and that is what they had told the applicant during the October 28, 2016 meeting. She stated that she told the applicant that she had informed the buyer that they had a good supervisor but the buyer told them she wanted to use her own supervisor.

19Ms. Sarmadi denied saying “look at you, you cannot even bend or walk” to the applicant or anything like such a statement. She confirmed that she had not seen the applicant walk or bend during the time period from October 17, 2016, to when the applicant exited the meeting on October 28, 2016.

Analysis and Decision

20The section of the Code that is applicable to the issues to be determined in this Application is:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

21The applicant has the onus of proving that the respondent violated her Code rights on a balance of probabilities. She must demonstrate that it is more likely than not that the respondent’s actions in terminating her employment were connected to her disability.

22I find that the actions of the respondent do not amount to a breach of the Code. For the reasons outlined below, I find that the applicant has not proven, on a balance of probabilities, that the applicant’s disability was a factor in the respondent’s decision to terminate her employment. She did not experience discrimination in employment.

23The applicant has not demonstrated that she was a person with a disability when she returned to work on October 17, 2016, or when she was terminated. The applicant’s evidence was that she was able to do her job when she returned on October 17, 2016, and that she had never discussed any restrictions or limitations with Mr. Ganjali or Ms. Sarmadi.

24I accept the evidence of Mr. Ganjali and Ms. Sarmadi as credible and reliable. The evidence each of them gave was consistent with the other’s evidence and it was supported by the documentary evidence.

25I accept their evidence that they had not observed the applicant experiencing any difficulties in performing her job duties and since the applicant had not advised them of any restrictions or limitations when she had returned on October 17, 2016, there is no evidence to base any finding that the respondent perceived the applicant to have a disability and that was a factor in the termination.

26The evidence that Mr. Ganjali and Ms. Sarmadi each gave about the demands of the purchaser was consistent with the other. It is clear from the share and asset purchase agreement that the applicant was to be terminated from her employment with the respondent as a condition of the agreement.

27Even if Mr. Ganjali or Ms. Sarmadi had observed the applicant using a cane and the grab stick, I find that the evidence does not demonstrate that on a balance of probabilities, the applicant’s disability or perceived disability was a factor in the decision to terminate the applicant’s employment. I accept the evidence of Mr. Ganjali and Ms. Sarmadi that the demand of the purchaser was the only reason why the applicant was terminated. As a result, I find that the respondent had a credible, non-discriminatory reason for the termination.

ORDER

28The Application is dismissed.