Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2017 Cases and Trends the only truck driver for Horizon at the time. Horizon paid owner-operators such as Temple by their mileage, as well as a fixed minimum amount for delivery. Owner- operators were responsible for the mainte- nance of their vehicles and expenses, while employee drivers charged expenses to com- pany accounts. Owner-operators normally had their expenses billed to Horizon, which the company listed in its monthly earnings and expenses statements for them. Temple initially joined Horizon as a re- placement for a sick driver and drove that driver's truck. In August of 2012 she reached an agreement to be an owner-operator with her own truck, making deliveries between Manitoba and British Columbia as she was based in B.C. On Oct. 14, 2014, Temple was filling up her truck with fuel in Kelowna, B.C., when another truck collided with hers. She injured her thumb in the accident and her truck and trailer suffered a significant amount of damage, but the load she was carrying was unharmed. e accident was caught on the gas station's camera and po- lice weren't contacted. Temple was unable to work because of her thumb injury, so she filed a workers' compensation claim for loss of wages. e claim wasn't completed until December, so she didn't receive payments until March 2015, retroactive to the accident date. She also filed a claim to Manitoba Public Insur- ance (MPI) for damage to the truck and trailer, but her deductible wasn't reim- bursed until July 2016. In December, Temple's truck was ready to go back on the road and she told Horizon she was ready to return to work. Horizon was able to find her some loads to deliver, which she picked up in Winnipeg and deliv- ered. She drove to B.C. and was told she had to be back in Winnipeg on Dec. 14. Temple informed Horizon she had a CT scan in Chilliwack, B.C., on Dec. 18, but the com- pany told her on Dec. 17 that she had a load to pick up in Richmond, B.C., the next day. Temple reminded Horizon though text mes- sages of her appointment and also said she had to have her truck inspected because of an engine light coming on. Temple went to her appointment and also discovered her truck had more problems that prevented it from getting back on the road until repairs were made. Because of her appointment and the truck's mechanical problems, Temple couldn't pick up the load in Richmond. Horizon tried to find a replace- ment but was unsuccessful. e same day, Horizon terminated Temple's employment. Temple filed a human rights complaint al- leging Horizon discriminated against her on the basis of her sex and her disability by sub- jecting her to adverse differential treatment in the course of her employment. Temple claimed that the adverse differ- ential treatment included assigning her a route that included a toll bridge in the Van- couver area and charging her for toll fees incurred, while two male drivers that she knew of were not charged the fees. She also said there were several instances when Ho- rizon forced her to deliver goods when she was unavailable and made her work harder than her male colleagues for the same pay — specifically one occasion in July 2014 when she was forced to accept an assignment and had to switch to a different work-and-rest cycle despite her warning that her hours were violating statutory requirements, and another in September 2014 when the company president threatened her via text message that she would be dismissed if she didn't pick up a new delivery on her way west with another load. In addition, Temple complained that Ho- rizon took too long to manage her workers' compensation and MPI claims, resulting in a delay of several months before she received any payments. Temple also said she didn't enjoy the same privileges as her male colleagues with regards to management of her debt to the company — she claimed Horizon dismissed her partly because of more than $10,000 charged to the company because of repairs to her truck following the accident, while another driver around the same time owed more than $24,000 and was given a chance to reimburse a large chunk of it without any action taken against him. She also received no assistance in renting a replacement truck, while a male driver had one rented for him by management. Some instances of differential treatment e tribunal found that of the two drivers Temple mentioned with regards to the toll bridge, one took an alternate route to avoid the bridge and another was an employee- operator and thus had his expenses cov- ered by Horizon. As a result, there was no evidence of adverse differential treatment in this regard. Nor was the failure to assist her in renting a truck differential treatment, as the evidence showed the only reason the male driver received help with his rental was that the manager was in the office and it was easy for him to do it. When Temple needed to rent, the manager was out and she was in the best position to arrange the rental. As for Temple's MPI claim, the evidence showed the delay in the claim was because Horizon was waiting for information from Temple on some medical tests and there were some communication errors on both sides — not differential treatment. With regards to Horizon forcing her to accept loads in July and September 2014, however, the tribunal agreed Horizon treated Temple adversely in the course of employment. e company also treated her adversely when it failed to give her the same opportunity to reimburse her debt before dismissing her, said the tribunal. e tribunal also found Horizon adversely treated Temple differently when it delayed completing her workers' compensation claim until December 2014, two months after the injury. While some management claimed not to know the extent of the injury, she reported it on the day of the accident and the company should have inquired if it needed more information, said the court. e differential treatment was underscored by another driver who was injured around the same time and had his claim completed "quickly and smoothly." e tribunal also found Horizon differen- tiated adversely to Temple when it assigned her a load on the day she had a CT scan scheduled, despite her informing the com- pany of it. Part of the problem was due to unclear text messaging and misunderstand- ings, but the result was differential treat- ment, said the tribunal. While the tribunal agreed that some of the above situations for which Temple claimed discrimination she did suffer from adverse differential treatment, it didn't find that the fact she was a woman and had an injury played a role in that treatment. As a result, there was no connection between the differential treatment and a protected ground under the Human Rights Code and no discrimination, though Temple may have felt the company treated her differ- ently than male truck drivers. "e evidence reveals that the company had many reasons to act as it did, includ- ing built-up frustration, low revenues and unreliability, and performance and commu- nication issues, to name but a few," said the tribunal. "I would add, however, that some of these reasons are questionable and do not justify the threats of dismissal. However, was the fact that Ms. Temple was a woman or dis- abled a factor in how she was treated? e evidence does not allow me to answer this in the affirmative." For more information see: • Sandra Temple v. Horizon International Distributors, 2017 CarswellNat 5435 (Can. Human Rights Trib.). 6 | November 8, 2017 Owner-operators had different arrangements than employees « from NO DISCRIMINATION on page 1 Female driver felt she was treated differently than male truck drivers

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