HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dia Mossa
Applicant
-and-
Presstran Industries, a division of Magna Structural Systems Inc.
Respondent
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Mossa v. Presstran Industries
APPEARANCES
Dia Mossa, Applicant
David Deluzio, Counsel
Presstran Industries, a division of Magna Structural Systems Inc., Respondent
Eric T. Gresham, Counsel
1This is an Application filed on December 30, 2017 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2In his Application the applicant makes two general allegations:
a. That the respondent terminated his employment in February 2015 because he had sought accommodation in the workplace and in reprisal for his having raised a health and air quality concern.
b. That in 2014 and 2015 he was harassed by an unidentified assistant general manager of the respondent who wanted him to quit. There are no particulars provided of this general allegation.
3The applicant also appears to allege, perhaps as background to the central claim of a discriminatory dismissal, that beginning in January 2016 the respondent did not appropriately accommodate a disability.
4On February 9, 2017 the respondent filed a Response. In its Response the respondent sought the dismissal of the Application pursuant to section 45.1 of the Code because the substance of the Application had been dealt with in two prior legal proceedings. The respondent made other arguments about other aspects of the case which have not been addressed in any other legal proceeding. Directions will be made below with respect to those matters below.
5The applicant was directed to respond to the respondent’s arguments and did so, confining his submissions to the section 45.1 issues.
6After reviewing the Response and the applicant’s Reply on the section 45.1 issue, the Tribunal directed that a preliminary issue hearing be held by telephone conference call to address the respondent’s arguments that the Application, as it relates to the applicant’s termination and his allegations of reprisal and a failure to accommodate an alleged disability, ought to be dismissed because the substance of those matters have been appropriately dealt with by the decision of an Employment Standards Officer (“ESO”) and the Workplace Safety and Insurance Board (“WSIB”).
7The preliminary hearing took place on July 11, 2017 by telephone conference call to hear the parties’ oral submissions on the issues identified in the Notice. It was agreed that the other issues raised by the respondent would be addressed subsequently.
8The applicant filed post-hearing submissions. Although no request was made to do so, these submissions were reviewed prior to the release of this Interim Decision.
9For the reasons that follow, the substance of this Application, that is the applicant’s allegations with respect to the termination of his employment, are dismissed pursuant to section 45.1 of the Code. To the extent that the Application also alleges a failure to accommodate the applicant's alleged disability-related needs for a short period of time prior to his dismissal from employment, I am not satisfied that these issues were addressed in the other proceedings relied on by the respondent.
THE DISMISSAL ISSUES
10The central issue in this Application is the applicant’s allegation that his dismissal from employment was a violation of the Code. The substance of this aspect of the Application is captured in the opening paragraph of the narrative contained in the Application:
February 26 2016 (Magna Human Resource Department Leader "HRDL" Michelle Sampson) sent me an email of termination letter for just cause, which I believe it was a discrimination against my disability due to health issues cause by work place that prevent me from being able to attend the 3rd meeting with Magna and reprisal from Magna against me reporting the health and ventilation issue and filing WSIB claim and report to the public health incident to the health unit of the ministry of labor since my health and health of public were not taken into consideration by Magna.
The actions made by Magna against me is negligence about public health in the work place is reprisal and constructive dismissal and violation of human rights and disrespect and inconsideration for my rights for the patent I did at Magna that caused me grief and mental impact and significant financial losses.
All nitpicking and harassment by Trevor Ready and harassment Michelle, I believe was clearly intended to make me quit. I was terminated, I believe after I raised my medical restrictions and due to the fact that I raised my need for accommodation and to correct the ventilation issue that affected my and other workers health. (emphasis added)
11The applicant filed a claim under the Employment Standards Act, 2000 (“ESA”). The substance of that claim is summarized in the decision of the ESO:
The claimant's (applicant’s) position is that the employer reprised against him for taking sick leave and for filing this Employment Standards claim. The claimant further alleged that the employer terminated him without notice and without pay in lieu of notice. Finally, the claimant alleged the employer deducted $2,300.00 from his pay without authorization and did not pay the claimant for overtime on 7 occasions. The claimant submitted copies of his termination letter and doctor's notes in support of his position.
12Several of the issues raised in the ESA claim are unique to it and have no bearing on this proceeding. However, although framed in a different statutory context, many of the facts essential to the substance of this Application were and were necessarily addressed in the course of the ESA decision making process and do bear on the case before the Tribunal.
13The applicant’s narrative of the background to this aspect of the dispute is briefly described in his Application as follows. The applicant was employed by the respondent for a number of years. The applicant alleges that in December 2015 he noticed that he was having some difficulty breathing when in the workplace. On or about January 13, 2016 the applicant had difficulty breathing at work and went to see his family doctor who recommended he go to hospital. He took this advice. The applicant was given a note from his family doctor which indicated that he should be off work for a week. He received another note from the hospital which indicated that he should be in an area with fresh air until he could see a specialist.
14The applicant alleges that on January 15, 2016 he received a letter of discipline which indicated that he would not be allowed to work until further notice. The letter also indicated that the medical information he had provided was not clear. The applicant alleges that he received a one day suspension and the respondent would not accommodate him by moving him to a room with a window. The applicant also alleges that he was told by the respondent that he could not work for one week.
15The applicant alleges that he provided a doctor’s note that indicated he would be off work until February 16, 2016.
16The applicant filed a WSIB claim. He alleges that the respondent asked him to indicate that his issues were not work related and take short term disability rather than file a WSIB claim.
17The applicant travelled overseas. He alleges he did so to see a specialist. The applicant alleges that the respondent disciplined him again while he was out of the country. The applicant alleges that the respondent demanded to see his tickets and an explanation for his foreign travel even though they were provided the reports.
18The applicant alleges that he felt intimidated by the respondent's actions.
19The applicant alleges that the respondent asked him to come for meeting (on February 25, 2016) but he told them that he could not attend for medical reasons. The applicant alleges that he had a doctor’s note that indicated he could not return to work until mid-March. The applicant alleges that the he asked the respondent to postpone the meeting until he felt better and had a lawyer. The applicant was dismissed from employment for cause in a letter dated February 26, 2016.
20In my view the substance of the Application as it relates to the allegation that the applicant’s termination was in reprisal for his request for accommodation or for having taken a leave or raising a health and safety issue have been dealt with in the other proceedings relied upon by the respondent most particularly the determinations of the ESO.
21Section 45.1 of the Code provides as follows:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
22There is no dispute that both the ESO and WSIB decision making processes are proceedings for the purpose of section 45.1 of the Code. The question is whether or not the substance of the Application has been appropriately dealt with in those proceedings.
23In this case it is not asserted by the respondent that the issues raised by the applicant with the ESO were framed as human rights or Code issues. The respondent argues, correctly in my view, that this case is in the category of section 45.1 cases where the facts found in the other proceeding remove the factual foundation of the substance of Application. That is, that the facts as found in the other proceeding make it impossible for the applicant to advance the dispute as a human rights case unless the Tribunal permits the re-litigation of those facts. See Qiu v. Regional Municipality of York Police Services Board, 2009 HRTO 2187; Grigoryev v Sara Lee Foodservice Ltd., 2014 HRTO 622 and, more recently, Levkivska v. Peel Condominium Corporation No. 231, 2016 HRTO 270 at paras. 25 and 26:
(…) In my view, this factor is better expressed in the context of the Ontario Code by asking whether the “substance” of the Court proceedings was essentially the same as the “substance” of the Application before this Tribunal, rather than narrowing the analysis to solely considering whether the “legal issue” in these two proceedings was essentially the same.
I say this in light of this Tribunal’s case law holding that, where the factual underpinnings of the allegations in the human rights Application are the same as the allegations raised in the other proceeding and where these factual underpinnings form a necessary component of establishing the alleged violations of the Code, this Tribunal will regard the “substance” of the human rights Application to be essentially the same as the “substance” of the other proceeding: see Qiu v. Neilson, 2009 HRTO 2187 at paras. 35 to 39; Paterno v. Salvation Army, 2011 HRTO 2298 [“Paterno”]; Reid v. Advantage Personnel Ltd., 2012 HRTO 1742; V.N. v. Bartlett, 2012 HRTO 1947 ; Carrier v. National Capital Region YMCA-YWCA, 2014 HRTO 1106 ; Law v. Noonan, 2013 HRTO 437; Griffith v. Hurst, 2013 HRTO 367; Clarke v. Kingdom Hotel Toronto Ltd., 2013 HRTO 2002; Hillier v. Benteler Automotive Canada Corporation, 2013 HRTO 655; Benstead v. Niagara Regional Housing, 2012 HRTO 1557; Acosta v. Far Horizons Inc., 2012 HRTO 1478; Caron v. Lakeside Plastics Limited, 2014 HRTO 958; Schildt v. POINTTS Advisory Limited, 2014 HRTO 893. (Emphasis added)
24In my view the substance of the applicant’s claims that his termination was discriminatory and/or in reprisal under the Code were addressed by the ESO’s decision which considered, primarily through the lens of whether or not the applicant was guilty of willful misconduct, a number of issues essential to the determination of the central allegations in this Application. I find that all of the same and essential factual issues related to the applicant’s claim that his termination was discriminatory or a reprisal were made by the ESO and, contrary to the argument of the applicant, were necessary to the decisions the ESO was required to make under ESA.
25The applicant argued that the ESO’s conclusions are largely obiter. I do not agree. To be clear, in my view the ESO was required to and did consider the applicant’s response to the claim that he was guilty of wilful misconduct which was essentially that the real reasons for his termination was that he raised a health concerns and took a medical leave. He also argued before the ESO that he was unable to attend what turned out to be a final meeting (on February 25, 2016) with the respondent because of his alleged illness.
26The ESO’s determinations of these issues is set out here:
Wilful conduct is defined as any action or behaviour that is not accidental. In review of the documents and evidence submitted by both parties, I find the claimant intended for the result of his actions. The employer compelled the claimant to attend a meeting, which the claimant intentionally refused to attend. I do not find it reasonable that the claimant's medical condition would have prevented him from attending a meeting with the employer. The claimant provided a note from his doctor dated February 16, 2016, wherein he is advised not to return to work until further notice. Returning to work and attending a meeting with the employer, outside of the production area, are not one in the same. Being excused from working does not excuse the claimant from meeting with the employer to discuss the accommodation of his medical condition. Furthermore, I find there to be a serious inconsistency with the claimant's position that he was medically fit to spend 20 to 30 hours in a confined, pressurized aircraft cabin with recirculated air, but not medically fit to attend a meeting with the employer.
In consideration of the above, I find the claimant's actions were wilful.
Consideration was given as to whether the claimant was guilty of neglect of duty.
Neglect of duty is applicable in situations where the claimant refuses to report for work. There may be two instances of neglect of duty in this matter.
The first involves the claimant's trip to Israel. While the claimant maintains the two week trip was to see a specialist regarding his medical condition, I find there to be inconsistencies with the claimant's position. The claimant's failure to follow airline requirements for air travel following a major medical incident is wholly inconsistent with his assertion that the trip was for medical purposes. Furthermore, the claimant did not inform the employer that he required leave beyond the period of time stated in the January 12, 2016, medical note he provided the employer. Finally, the claimant did not inform the employer he would not return to work on or after January 26, 2016, the first day after the expiry of the medical leave.
The second incident involved the claimant's refusal to attend the meeting with the employer on February 25, 2016. The claimant maintains this refusal was related to his illness. I do not find the claimant's medical documentation excused him from meeting with the employer, particularly in consideration of the transcontinental flight taken only weeks before the proposed meeting. In consideration of the above, I find both of the aforementioned incidents to be wilful neglect of duty.
I do not find the claimant's conduct to be trivial. The claimant's wilful neglect of duty had a significant impact on the employer's operations, particularly as the employer demonstrated a significant effort to accommodate and address the claimant's medical concerns. (Emphasis added)
27The ESO also addressed the related allegation that the dismissal was a reprisal. I appreciate that the reprisal alleged before the ESO was in relation to his taking Personal Emergency Leave for medical reasons; however, in considering this issue the decision addressed the broader claim of a termination provoked by an alleged illness or occupational disease.
Although the claimant's termination followed the use of Personal Emergency Leave, I find that his termination was a direct result of his misconduct. Contrary to his claim of reprisal, I find the employer supported the claimant's use of Personal Emergency Leave to address his health and made a reasonable effort to accommodate his return to work at the conclusion of that leave.
28I find that the ESO’s rejection of the applicant’s position on the issues before him and his conclusions, not the least of which was the finding of fact that the applicant’s termination was a “direct result of his insubordination” described at length in the ESO’s reasons, precludes the applicant from relitigating the reasons for his dismissal from employment including whether or not it was in reprisal for taking a medical leave or requesting any other accommodation. Implicit in all of these conclusions is a determination that the respondent had acted reasonably in its efforts to provide accommodations to the applicant. The ESO also concluded in the context of his determination of the reprisal claim that contrary to the applicant’s argument the respondent supported the applicant in his taking emergency for health reasons and made reasonable efforts to respond to his health concerns.
29Although not central to the resolution of this issue, I also note that the WSIB determination from August 2016 based on the information provided to it by the applicant, including a Ministry of Labour Field Visit Report, that found no evidence of an occupational or other disease.
30In my view the ESO’s determinations have removed the substance of the Application from consideration by this Tribunal. However, the applicant also argued that much of the ESO’s decision was obiter and unnecessary to the issues before him. I do not agree. As indicated above, the ESO considered, as he should have in the context of his statutory mandate, whether or not the applicant was entitled to disregard directions from his employer because he was allegedly a person with a disability at the time and unable to comply.
31The ESO considered the applicant’s evidence and his arguments and concluded that the applicant was not entitled to ignore the respondent’s directions and found that the respondent had acted reasonably in responding to the applicant’s alleged need for accommodations. He also found that, on the contrary, the applicant had not acted reasonably. He was also required to consider whether or not the applicant was guilty of neglect of duty and in this context considered the applicant’s trip to Israel and concluded in the circumstances after considering the applicant’s evidence to justify this excursion, that it was not justified and amounted to conduct sufficient to support the applicant’s dismissal without notice.
32The applicant argued that the decision should be disregarded because the ESO was biased. The applicant asserted that the ESO is related to a senior manager of the respondent. Beyond identifying someone with the same last name as the ESO there were no other details provided to support this claim. The respondent disputed the applicant’s assertions. The applicant does not appear to have raised this issue with the ESO. I agree with the respondent that the proper forum to address that issue would have been an application for review of the ESO’s decision before the Ontario Labour Relations Board. Moreover, I find that if this was an issue it should have been raised with the ESO and should not be raised here for the first time. See Paterno, above.
33The applicant also argued that the decision of the ESO ought to be disregarded because it is flawed in a number of ways. The applicant made a number of submissions to the effect that the decision of the ESO was wrong and appeared to have been crafted for the purposes of a pending human rights application. There was no evidentiary foundation for this latter assertion. More to the point, the Tribunal’s case law establishes that it does not sit in review of the decisions of other decision makers and that we are not entitled to review the conclusions of other decision makers for correctness.
34The respondent challenged the assertion that the applicant had acted without legal advice because it appears undisputed that in refusing to attend a meeting with the respondent the applicant advised the respondent to deal with him through his counsel. The applicant suggested at the hearing that he did not have counsel at the time. In my view it does not matter whether he did or not, although it is clear that he understood at the time the involvement of a lawyer was at least a possibility. In any event the applicant made a choice about where to pursue his claims. The fact that the applicant made his choice without the benefit of legal advice is another choice that he made.
35Finally, the applicant argued that he may have chosen the wrong forum and, when he realized that he had done so, filed this Application. The applicant claims to have acted without legal advice and that he is not forum shopping. The applicant argued that to hold him to his initial choice would not be fair. I disagree and for the reasons given above the Application as it relates to the applicant’s dismissal from employment is dismissed.
THE ACCOMODATION ISSUES
36The respondent also argued that the decision of the ESO together with the determination of the WSIB precludes any claim, if one exists, that the respondent failed to appropriately accommodate an alleged disability. The respondent relies on the fact that the WSIB, when considering all of the evidence available to it at the time including a contemporaneous Ministry of Labour Field Visit report, found there was no evidence of occupational asthma or any bronchial disease. The respondent also relies on the conclusions the ESO made in the course of determining whether or not the applicant was guilty of willful misconduct or neglect of duty, that the respondent had acted reasonably in attempting to accommodate the applicant’s medical needs.
37The applicant did not address this issue in any detail and it is fair to say that the accommodation issue is clearly not at the heart of the Application. But there does appear to be an allegation that the respondent failed to respond appropriately to the applicant’s request for accommodation between an unspecified date in December 2015 and January 13, 2016.
38At this stage although there are some conclusions of the ESO and the WSIB that may bear on the resolution of this issue I am not persuaded that the substance of this aspect of the Application has been dealt with in these other proceedings. I have come to this conclusion for two reasons. First, on this aspect of the ESO’s decision making I agree with the applicant that the issue of whether or not the respondent appropriately accommodated the applicant's disability related needs was tangential to the issues before him and, except in relation to the issues resulting in discipline of the applicant and his termination, not necessary to the ESO’s decision. Second, although after the fact the WSIB determined that there was no evidence of occupational or other disease, I am not persuaded at this stage that this is the entire answer to the question of whether or not the applicant may have been a person with a disability and in need of accommodation between December 2015 and January 13, 2016 and, of course, whether or not the respondent appropriately responded at that stage.
NEXT STEPS
39In addition to what may remain of the applicant’s claim that the respondent failed to accommodate an alleged disability, there are other claims of harassment which pre-date the alleged disability and which the respondent has argued should be dismissed as well for reasons of delay and there being no reasonable prospect of success.
40Having reviewed the Application, Response and Reply I direct that a summary hearing be held to determine whether the remaining allegations should be dismissed, in whole or in part, on the basis that some or all are untimely or because there is no reasonable prospect that some or all the remaining allegations will succeed. The summary hearing gives the applicant an opportunity to more fully explain the allegations contained in the application and to hear argument from the parties before the Tribunal makes its decision about whether all or part of the application has no reasonable prospect of success.
41The Tribunal does not have the power to deal with or remedy general allegations of unfairness. The Tribunal only has the power to deal with discrimination, harassment or reprisal that is prohibited by the Code. Discrimination in the legal sense requires proof that the respondent's adverse treatment of the applicant is based, at least in part, on the applicant’s race, gender, disability or other prohibited ground under the Code. In other words, the prohibited ground must be connected to the adverse treatment.
42Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:
19A.1 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.
19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.
43Rule 19A sets out specific guidelines for this type of preliminary hearing and it is important because the procedures for a summary hearing are slightly different than other types of preliminary hearing issues. Most importantly, the parties are not expected to submit documents or call witnesses to testify for the purpose of a summary hearing. In this case the Tribunal has decided to hold a summary hearing because it appears that the applicant may be unable to prove that there is a connection between what the respondent is alleged to have done, and the ground of disability cited in the Application. That is, although the applicant may believe that the conduct of the respondents is connected to the ground, it is not clear that there is evidence available to the applicant to prove the connection. The focus of this inquiry is on the evidence the applicant has or may be able to obtain.
44In this case it appears that the alleged harassment or discrimination occurred prior to any alleged disability that may have arisen and appears to be unconnected to any disability or perceived disability. The applicant will be expected to explain what connections exist between the alleged actions of the respondent and the grounds of discrimination cited. With respect to the claim that the respondent failed to accommodate the applicant there is a question about whether or not the applicant was a person with a disability and whether there is any evidence that the respondent failed to adequately respond to the applicant’s disability related needs. It is not clear based on the pleadings to date whether or not the applicant has evidence reasonably available to him to substantiate this claim.
45Unlike other preliminary matters, which are determined on a “balance of probabilities”, the test the Tribunal applies at a summary hearing is whether an application has “no reasonable prospect of success.” If, after examining the allegations and hearing the parties’ submissions, the Tribunal determines that an application has no reasonable prospect of success, it will be dismissed. If the Tribunal does not dismiss an application, it will continue in the Tribunal’s process. In some cases, the Tribunal may find that only part of the application will move ahead, while part of it is dismissed
46It also appears that some of the allegations of the applicant are out of time. Section 34(1) and (2) of the Code reads as follows:
(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
47The parties may make submissions on whether some or all of the remaining allegations are outside the Tribunal’s jurisdiction for this reason.
48The Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. The applicant shall make argument about why the Application should not be dismissed because it has no reasonable prospect of success, and point to the evidence on which the applicant will prove a link between the respondent's actions and the grounds cited. No witnesses will give evidence during the summary hearing.
49If the Tribunal determines that the remaining allegations have no reasonable prospect of success, they will be dismissed. If the Tribunal does not dismiss the remaining allegations they will continue in the Tribunal process.
50A Notice of Summary Hearing will follow from the Registrar’s Office. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than no later than 35 days after the date of this letter.
51The parties may wish to consult the Tribunal’s Practice Direction on Summary Hearing Requests, available on the Tribunal’s website at http://www.sjto.gov.on.ca/hrto/.
DIRECTION
52The Registrar will schedule a half-day summary hearing by conference call. The parties shall deliver to each other and file with the Tribunal copies of any further documents, no later than 35 days after the date of this Interim Decision.
53I am not seized.
Dated at Toronto, this 2nd day of August, 2017.
“Signed by”
David Muir
Vice-chair