Older worker unsuccessfully claimed age, disability were factors in treatment, dismissal
The worker was a shuttle bus driver for Parkway Plymouth Chrysler, an auto dealership in Mississauga, Ont. Beginning in January 2015, Parkway was part of a group of auto dealerships under common ownership and control that operated under the name Car Nation Canada.
When the Car Nation common operation began in 2015, Car Nation required the worker to provide their driver’s licence, which displeased the worker because it revealed that they were 80 years old. Car Nation also didn’t permit them to park in a preferred parking space, which was marked for disabled people, and reduced their hours while assigning more to a younger employee.
According to the worker, a customer assaulted them, but Car Nation tried to smooth things over by awarding the customer $400, further displeasing the worker.
On Aug. 28, 2017, Parkway’s assets were sold to another auto dealership company and stopped operating as a business and employer. The purchase agreement required the purchaser, Go Auto Dealerships, to continue the employment of the worker and other Parkway employees at another Mississauga dealership, Go Dodge.
The worker made an employment standards complaint, leading to an employment standards officer finding that the sale of Parkway terminated the worker’s employment. Parkway was ordered to pay the worker severance and termination pay.
Complaint of age, disability discrimination
The worker also filed a human rights application alleging that Car Nation and Go Auto discriminated against them because of age and disability. The claim was based on Car Nation forcing the worker to reveal their age, preventing them from using the disabled parking space, unfairly supporting a customer who assaulted them, and reducing their hours. The worker also claimed the termination of their employment was based on discriminatory reasons.
Car Nation disputed that the worker’s age or disability was a factor in any of its decisions. It argued that it was reasonable for a new employer to ask a driver to show their driver’s licence, it told all employees to find alternate parking spots, and there was no evidence of any connection between the worker’s age and the work schedule changes or altercation with the customer.
Car Nation also maintained that the worker was never employed with Car Nation. They were an employee of Parkway and the employment standards officer’s order for Parkway to pay them termination and severance pay resolved their employment with that dealership, the company said.
Go Auto claimed that all the allegations occurred before it purchased Parkway and it had no knowledge of the worker’s age at the time or purchase. It also didn’t employ the worker, it said.
The tribunal conducted a summary hearing to determine if the worker’s application should be dismissed in whole or in part for having no reasonable prospect of success in a full hearing.
Worker’s belief not evidence
The tribunal agreed that the worker believed that they were discriminated against in their employment, noting that the worker said at the summary hearing that the co-worker who was given more hours “being a younger man leads me to the conclusion that it was my age.” However, the worker didn’t provide any evidence supporting that belief, the tribunal said, noting that the same applied to the driver’s licence issue, the parking spot issue, and the worker’s termination.
“For the purposes of a summary hearing, an applicant must be able to point to some evidence, beyond their own suspicions, that could make out a link to the [Ontario Human Rights] Code,” said the tribunal. “The tribunal has repeatedly said that an applicant’s belief, no matter how strongly held, is not evidence upon which the tribunal might find that discrimination has occurred.”
The tribunal didn’t address the question of whether Car Nation or Go Auto ever employed the worker, as it was irrelevant given that the worker had no evidence to support the argument that any adverse treatment was because of protected grounds under the code.
The worker’s application was dismissed for having no reasonable prospect of success. See Nell v. Car Nation Canada, 2023 HRTO 1830.
