The Ontario Human Rights Tribunal recently released its decision
in Eamon v Riley's Valu-Mart, 2016 HRTO 162 (CanLII).
The case involved an application to the Ontario Human Rights
Tribunal which alleged discrimination in employment. The
application included allegations of discrimination on the
prohibited grounds of disability, sex, gender identity, gender
expression, age and that the applicant was subjected to reprisal
contrary to the Ontario Human Rights Code. The case is
significant because it affirms that the Tribunal will not afford
weight to bald allegations of discrimination not tied to the
alleged impugned ground under the Code.
The applicant was employed by the respondent as a stock clerk
for a little over a month. The allegations raised in his
application included that he was pushed too hard at work, denied
overtime, told to get back to work and forced to do more work even
though he had unloaded "half the total workload by himself
before lunch, subsequently the other two employees took a 1 hour
During a summary hearing, the applicant stated that he
"felt" and "believed" that he was treated in
this manner on the basis of the enumerated grounds. The Tribunal
commented that the applicant did not cite evidence in his
possession or evidence that might reasonably be available to him
upon which the Tribunal could rely to arrive at even an inference
of discrimination. The Tribunal noted that the allegations were so
vague "as to make it of little use to the Tribunal in
determining the respondent's actions were due to the grounds
identified in his application."
To this end, the Tribunal reiterated that:
Expectations that an individual will
work hard, perform the duties of his position, and only take breaks
when allowed to do so, do not constitute a violation of the Code.
The applicant may perceive such requirements as unfair, however,
the Tribunal does not deal with allegations of unfairness, but only
with treatment that is discriminatory on an enumerated ground under
The applicant alleges that he was
"talked down to" and told to "get back to
work". Even if true, the Tribunal has indicated that even
"a demeaning tone" (Ahmed v. VPI, 2010 HRTO 1855 (CanLII) at
paragraph 45) or "rudeness" (Fisher v. Sheidow, 2011 HRTO 2332 (CanLII) at
paragraog 18) are not, in and of themselves, evidence of
discrimination as opposed to frustration at the applicant.
On the facts of this case, there was
no link to a prohibited ground. While an applicant might feel
upset, frustrated or otherwise hard-done by, that, on its own, is
not sufficient. There must be evidence presented that suggests a
link to a prohibited ground or "evidence that would allow the
Tribunal to draw an inference of discrimination."
This case is significant for both applicants and respondents.
For applicants, it underscores the need to flesh out the specific
nature of the allegation being advanced and provide evidence as to
how the impugned conduct is linked with a protected ground under
the Code. For respondents, it is another cue from the
Tribunal that when faced with bald allegations, a respondent may
want to request a summary hearing so that claims not capable of
proof may be dealt with in an expeditious manner.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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