Michael Venturini v. FCA Canada Inc. and Manny Cardosa, 2017 HRTO 966

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Venturini

Applicant

-and-

FCA Canada Inc. and Manny Cardosa

Respondents

DECISION

Adjudicator: Douglas Sanderson

Date: July 28, 2017

Citation: 2017 HRTO 966

Indexed as: Venturini v. FCA Canada Inc.

APPEARANCES

Michael Venturini, Applicant

Dini Venturini, Representative

FCA Canada Inc., Respondent

Christopher Dunn, Counsel

Manny Cardosa, Respondent

James Stewart, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment and with respect to goods, services and facilities because of age and reprisal.

Background

2The applicant was employed by the organizational respondent from on or about August 17, 2015 to October 13, 2015, when he was dismissed. He was 51 years old when he was hired. At the time of his dismissal, the applicant was a probationary employee. The applicant alleges that about a month and a half into his probationary period he began to experience difficulties. The applicant stated that when employees working on the production line need to use the washroom they press a button to alert a supervisor to take their place to allow them to leave the line. The applicant alleges that the supervisor began to ignore the applicant when he followed this procedure, despite the fact that the applicant observed that the supervisor was not engaged in any kind of work activity. The applicant alleged that the supervisor responded promptly when other employees requested washroom breaks. The applicant was suspended from work on October 13, 2015, pending the investigation of a complaint about the applicant by several co-workers. On October 28, 2015, the applicant received a letter from the respondent informing him of the termination of his employment. The applicant states that his union, Unifor Local 444, assured him that he would have an opportunity to attend a meeting during which he would have the opportunity to present his version of events and explain himself. Instead, he waited several months until April 5, 2016, when he received a letter from the union informing him that the union would not pursue a grievance for him due to lack of merit. The individual respondent is a Committee Person for the union.

Hearing

3By Case Assessment Direction dated January 18, 2017, the Tribunal ordered that a summary hearing be held to determine whether this Application should be dismissed, in whole or part, because it has no reasonable prospect of success. The Tribunal held the summary hearing by teleconference on July 6, 2017.

4At the commencement of the hearing, I explained that the Tribunal has no power to deal with allegations of general unfairness and that to establish discrimination an applicant must show that there is a connection between a respondent’s impugned actions and a prohibited ground of discrimination. In this case it was not clear that there was any evidence establishing the necessary connections. Further, proof of an allegation of reprisal requires that an applicant claimed his or her Code rights, began a proceeding under the Code or refused to infringe the rights of others, and that the respondent retaliated or threatened retaliation because the applicant pursued his Code rights. The Application also did not appear to assert facts that would support an allegation of reprisal. I advised the applicant’s representative that the summary hearing was an opportunity for her, on the applicant’s behalf, to describe the evidence that he has or has reasonably available to him that would link the respondents’ actions with his age or establish the facts necessary to establish reprisal.

Submissions

5The applicant’s representative made the following submissions.

6The applicant was dismissed without a proper meeting or investigation, as the applicant was not allowed to attend the meeting where the organizational respondent and the union discussed his employment. During his employment with the organizational respondent, the applicant was often asked by co-workers how old he was and was told “You don’t look that old” when he stated his age. The applicant’s representative stated that these comments were probably not related to the applicant’s dismissal or the failure to invite him to the meeting, but the applicant felt “discriminated.”

7After the applicant completed his first month of employment he began to experience difficulty in obtaining relief to use the bathroom and had to ring the bell used to call relief repeatedly. Others were acknowledged promptly. When asked what the evidence was connecting this issue to the applicant’s age, the applicant’s representative stated that the applicant has a slight form of Irritable Bowel Syndrome (“IBS”) and the failure of the lead hand to relieve him promptly made him angry.

8The organizational respondent submitted that the applicant presented no facts establishing a connection between his age and the respondents’ actions. The respondent submitted that the applicant did not allege that he asked for accommodation related to IBS or that he brought his IBS to the organizational respondent’s attention. Similarly, the organizational respondent submitted that the applicant had not identified facts that could support a claim of reprisal. The organizational respondent submitted that the respondent dismissed the applicant during his probationary period after it received complaints that the applicant made violent comments about other employees, the applicant’s supervisor and third parties. Accordingly, the termination of the applicant’s employment had nothing to do with his age.

9The individual respondent submitted that the applicant presented no facts that would support allegations against the individual respondent. The individual respondent submitted that the union filed a grievance, but, as the applicant was a probationary employee, only grievances alleging human rights issues were permitted to proceed. The applicant’s grievance made no such allegations; therefore, the grievance could not proceed after the organizational respondent denied the grievance. The applicant was not able to attend the grievance meeting because he had made violent threats and was not allowed on the company’s premises; therefore, the union represented him in his absence. The individual respondent stated that the union was unaware that the applicant had any disability that may cause more bathroom breaks.

Analysis and Decision

10Section 5 of the Code provides as follows:

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.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

11Section 8 of the Code provides as follows:

8. 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.

12Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an 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.

13In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments regarding the concept of no reasonable prospect of success at paragraphs 8-10:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

14The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201, and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, colour or ethnic origin. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced. In a summary hearing, the Tribunal does not determine whether the applicant is telling the truth or assess the impact of the treatment they experienced. There is no question that acts of unfairness that are not legally discriminatory can cause significant harm.

15At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the application may be found to have no reasonable prospect of success.

16In this case, the applicant pointed to no evidence that he has or has reasonably available to him that would connect the respondents’ actions to the Code ground of age. The only evidence the applicant’s representative described in this regard were comments by co-workers to the effect that he does not appear to be as old as he is. First, it is not clear how such a comment could be taken as negative. Second, this evidence provides no proper basis for concluding that the applicant’s age was a factor in his supervisor’s delays in responding to his requests to use the bathroom. Accordingly, this allegation has no reasonable prospect of success. The applicant’s representative stated that the applicant has IBS, but pointed to no evidence that the applicant ever advised the respondents of this or requested accommodation for his condition. The applicant’s representative stated that it was unlikely the organizational respondent dismissed the applicant because of his age or that age was a factor in the union’s decision not to invite him to the grievance meeting. In my view, these concessions were appropriate because she described no evidence that the applicant has or may reasonably be available to him connecting these decisions to his age. I find that the applicant’s allegations regarding his dismissal and his inability to attend the grievance meeting have no reasonable prospect of success.

17To establish reprisal, the applicant must establish that the respondents took action against him or made threats that were intended to retaliate against him for asserting his human rights. Noble v. York University, 2010 HRTO 878 at paragraphs 33 and 34. The applicant has not asserted that he complained, formally or informally, of violations of his human rights while employed by the organizational respondent or that the respondents retaliated against him for so doing. In these circumstances, the applicant’s allegation of reprisal has no reasonable prospect of success.

18The Application is dismissed.