Berisa v. Toronto (City), 2008 HRTO 246

Human Rights Tribunal of Ontario

B E T W E E N:

Rustem Berisa Complainant

• and -

Ontario Human Rights Commission

• and -

City of Toronto, John Crilly, Toby Druce, Boris Rosolak, Nick Flora, Foster Cockburn, Al Cormier, Melanie Brown, Joe Brinkos, and Liam Quinn Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim Date: November 12, 2008 Citation: 2008 HRTO 246 Indexed as: Berisa v. Toronto (City)

Human Rights Tribunal of Ontario 655 Bay Street, 14th Floor Toronto, ON M7A 2A3 Phone (416) 314-8419 / Fax (416) 314-8743 / Toll free 1-866-598-0322 TTY (416) 314-2379 / (toll free) 1-800-424-1168 E-mail hrto.registrar-transition@ontario.ca Website www.hrto.ca

1This is a complaint referred by the Ontario Human Rights Commission (the "Commission") under the old Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The referred complaint alleges that the complainant's right to equal treatment in employment without discrimination because of his ancestry, creed, ethnic origin, and place of origin was infringed, contrary to subsection 5(1) and 5(2) and section 9 of the Code.

2In a previous interim decision Berisa v. Toronto (City), 2008 HRTO 223 I accepted the respondents' request to strike the complainant's disability related allegations from these proceedings. I also made rulings with respect to production. These are the reasons for my rulings.

BACKGROUND

3On January 22, 2002 the complainant filed a complaint with the Commission alleging discrimination and harassment in employment on the basis of ancestry, creed, disability and place of origin.

4The complainant experienced a work-related injury in March 2001 for which he claimed Workplace Safety and Insurance Act ("WSIA") benefits. In his complaint, the complainant stated that he had been harassed because of his disability. He also stated he re-injured his back and wrist on October 8, 2001 and had not returned to work as of the date of the complaint.

5On September 25, 2007 the Commission decided to refer the complaint to the Tribunal, except for the disability-related allegations of harassment and discrimination. The reasons for the Commission's decision are set out in full below:

• There is insufficient evidence to indicate that the complainant was subjected to unequal treatment or harassment in employment because of disability.
• There in insufficient evidence to indicate that the complainant's employer did not accommodate his disability during the material time. The evidence indicates that the complainant was accommodated according to his physician's recommendations in July 2001.
• Moreover, the evidence indicates that the complainant was offered modified duties and accommodation on his return to work in December 2001.

6The Tribunal proceedings commenced on November 13, 2007. The parties filed their statements of facts, issues, and remedies by June 2008 and the Tribunal convened a case management meeting on August 7, 2008. At that time, the Tribunal directed that the proceedings would be heard in two stages. The first stage will deal with liability and the second stage, if required, will deal with remedy. The Tribunal received written submissions from the parties regarding the respondents' request to strike the disability-related allegations set out in the complainant's statement of facts.

7The complainant's statement of facts sets out allegations relating to disability-related harassment and discrimination at paragraphs 15, 16, 18, 19, 21, 36 to 40, 42 to 44 and 46 to 56.

EXPANDING THE SCOPE OF THE COMPLAINT TO INCLUDE DISABILITY-RELATED ALLEGATIONS

8The respondents submitted that the Tribunal should decline to exercise its discretion to expand the scope of the referred complaint to include the disability-related allegations in light of the Commission's decision not to refer those allegations to the Tribunal. Further, the respondents submitted that it would be an abuse of the Tribunal's process to hear the disability-related allegations in light of various Workplace Safety and Insurance Board ("WSIB") determinations granting the applicant benefits and/or determining that the employer had appropriately accommodated the complainant's disability. In the further alternative, the respondents submitted that the Tribunal should exercise its discretion under section 45.1 of the Code to refuse to inquire into the disability-related allegations on the basis that the substance of the disability-related allegations have been appropriately dealt with by the WSIB process.

9The Commission took no position on the respondents' request and advised that it will not be calling any evidence or making any submissions on the disability-related allegations if they are added to these proceedings.

10The complainant submitted that the Tribunal should exercise its discretion to hear the disability-related allegations despite the Commission's decision not to refer them to the Tribunal. He also submitted that the WSIB decision relied upon by the respondents related only to the period after November 2004 and did not address the allegations set out in paragraphs 15, 16, 18, 19, 21, 36 to 40, 42-44 and 46 to 55 of his statement of facts and therefore did support a finding of issue estoppel or abuse of process with respect to those allegations. Further, the complainant submitted that the respondents' failure to accommodate his disability and the harassment he suffered was both a form of reprisal following the filing of the January 2002 complaint and also constituted another means through which he was subjected to discrimination and harassment on the basis of his ethnic origin.

11I will consider whether to exercise my discretion to expand the scope of the complaint to include the disability-related allegations in respect of three time periods: pre-January 2002, post-November 2002, and post-November 2004. I will also address whether any of the post-November 2002 allegations ought to be added to these proceedings as a form of reprisal for the complainant's filing the January 2002 complaint.

EXPANDING THE SCOPE OF THE COMPLAINT: PRE-JANUARY 2002 DISABILITY-RELATED ALLEGATIONS

12The allegations in paragraphs 15, 16, 18, 19, 21 and 36 to 40 of complainant's statement of facts relate to alleged disability harassment and failure to accommodate the complainant's disability-related needs up to the date of the filing of the complaint in January 2002.

13The scheme of the pre-June 30, 2008 Code contemplated that the Commission could investigate and decide to refer part, but not all of a complainant's allegations of discrimination. While the Tribunal has the discretion to expand the scope of the complaint to hear allegations previously investigated but not referred by the Commission, there should be some reason advanced to warrant the exercise of that discretion, more than mere fact that the Tribunal is convened in any event to hear other aspects of the complaint. The provisions of the old Code which contemplated that, following investigation some but not all the allegations of discrimination could be referred, would be senseless if the legislature had intended that the Tribunal hear and determine the non-referred allegations in every case.

14The primary argument put forward by the complainant to justify the exercise of discretion to hear the pre-January 2002 allegations is that the failure to accommodate and the disability-related harassment constituted another means through which he was subjected to discrimination and harassment on the basis of his ethnic origin, place of origin and perceived religious beliefs. The complainant submitted that allegations of discrimination should be viewed holistically in order to understand the intersecting nature of the discrimination which manifested itself both as ethnic-origin discrimination and disability discrimination.

15While I appreciate the complainant's submissions regarding the importance of assessing allegations of discrimination holistically and considering the intersecting nature of the ethnic origin and disability discrimination, this complaint arose in the context of the pre-June 30, 2008 regime. Under that regime, it was open to the Commission to consider the intersectionality of different grounds of discrimination but nonetheless refer some but not all of a complainant's allegations to the Tribunal. The complainant was represented by counsel before the Commission and was aware of the Commission staff recommendation not to refer the disability-related allegations. The complainant had the opportunity to make these submissions regarding the intersectionality of the disability and ethnic origin forms of discrimination to the Commission. For the reasons above, I do not view the alleged intersecting nature of the discrimination to be a sufficient basis to exercise my discretion to completely disregard the Commission's investigation and referral processes, and simply add back the specific allegations not referred to the Tribunal.

16With respect to the characterization of the disability-related discrimination as another form of ethnic origin-based discrimination, it is not unusual for the Tribunal to permit an amendment to a complaint to add an additional prohibited ground where the amendment amounts to no more than an alternative legal characterization of the same allegations. In this case, however, the request to add an additional prohibited ground is much more than an alternative legal characterization of the same allegations. The addition of the disability-related allegations would substantially prolong these proceedings and involve an inquiry into whether the employer failed to accommodate the complainant and whether the complainant experienced disability-related harassment.

17For the reasons set out above, I am not satisfied that this is an appropriate case to exercise my discretion to expand the scope of the proceedings to add the disability-related allegations as another form of ethnic origin-based discrimination.

EXPANDING THE SCOPE OF THE COMPLAINT: NOVEMBER 2002 to NOVEMBER 2004

18The complainant experienced another work-related injury on November 26, 2002. The post November 2002 allegations of failure to accommodate and harassment on the basis of disability (set out in paragraphs 42 to 44 and 46 to 55 of the complainant's statement of facts) were not the subject of a Commission investigation or decision.

19The Tribunal has the discretion to permit the parties to amend the scope of the complaint to add further acts of discrimination which arise after the complaint is filed, if they arise out of the underlying complaint that was referred. The Tribunal may exercise its discretion in this regard where the amendment to include the new allegations would be appropriate in the circumstances and/or where the new allegations provide a useful context for considering the legal issues in the case: Odell v. Toronto Transit Commission (No. 1) (2001) 2001 CanLII 26210 (ON HRT), 39 C.H.R.R. D/200. In Jeffrey v Dofasco 2000 CanLII 20864, the Tribunal permitted the Commission to amend the complaint to add allegations of harassment which arose after the complaint was referred to the Tribunal. Similarly, in Entrop v. Imperial Oil (1994), 1994 CanLII 18413 (ON HRT), 23 C.H.R.R. D/186 (paras.4 and 5), the Tribunal amended the complaint to inquire into the entirety of the alcohol testing policy, rather than limiting the inquiry into those aspects of the policy which specifically affected the complainant. That amendment was upheld by the Ontario Court of Appeal. At the same time, the Court of Appeal recognized that there are limits to the exercise of a Tribunal's discretion to expand the scope of the complaint: Entrop v. Imperial Oil (2000) 2000 CanLII 16800 (ON CA), 50 O.R. (3d) 18 (OCA) at paragraph 50.

20Where the additional allegations flow directly from the subject matter of the complaint already referred (my emphasis), it may be appropriate to expand the scope of the referred complaint to consider post-referral allegations of discrimination. If the Commission had referred the disability-related allegations up to December 2001, it may have been appropriate to exercise my discretion to expand the scope of the complaint to incorporate post-complaint disability-related harassment and discrimination. However, in this case, the subject matter of the complaint referred to the Tribunal does not encompass any disability-related allegations. Accordingly, I do not find that the new allegations flow from the referred subject matter of the complaint.

21Another basis for declining to exercise my discretion to expand the scope of the referred complaint to consider paragraphs 42 to 44 and 46 to 55 of the complainant's statement of facts is that some of these concerns have been partially addressed through the complainant's application for benefits under the WSIA.

22The complainant filed a claim for benefits under the WSIA following the November 26, 2002 workplace injury and received benefits until his return to work in January 2003.

23The complainant reported a recurrence of his injury on March 4, 2003 and April 29, 2003 and sought further benefits as a result. His claim for benefits was denied on the basis that any incapacity was not related to the original WSIB injury (WSIB Appeals Resolution Officer ("ARO") Decision dated June 6, 2005). The complainant did not appeal this decision.

24The complainant returned to work on June 16, 2003 working half-days (paragraph 46 of complainant's statement of facts).

25In July 2003, the employer advised the WSIB that they could no longer accommodate the complainant's need for reduced hours in the counsellor position and offered the complainant a position as client services worker at full hours. The complainant expressed concerns with the suitability of this position (WSIB ARO Decision dated March 23, 2006).

26The WSIB reinstated the complainant's benefits in July 2003 (WSIB ARO Decision dated March 23, 2006).

27The WSIB conducted a functional abilities evaluation on September 23, 2003 to clarify the complainant's abilities. An ergonomic assessment was arranged to determine the suitability of the counsellor position and the client services worker position. The ergonomic review concluded that the job of client services worker was unsuitable, but the position of counsellor was suitable, with some minor accommodations. (WSIB ARO Decision date March 23, 2006).

28A six week training assignment in January 2004 did not work out, and the complainant remained on benefits (WSIB ARO Decision dated March 23, 2006). The complainant returned to work on April 13, 2004 (paragraph 52 of the complainant's statement of facts).

29In July 2004 the City allegedly advised the WSIB that it could no longer accommodate the complainant's physical restrictions. In October 2004, the employer offered the complainant a modified client services worker position at an alternative location. The complainant expressed concerns about the suitability of this position, but commenced work on October 19, 2004 at four hours per day. The WSIB conducted an ergonomic assessment of the position on that day. The conclusion was that the position was a highly accommodated position that suited the worker's medical restrictions, except for the absence of adequate leg support. The complainant worked in the position from October 19 to November 14, 2004 when he experienced a new injury (WSIB ARO Decision dated March 23, 2006).

30With respect to the provision of adequate leg support, the ergonomic specialist advised the complainant of the make and model of the leg support he required. The employer contacted the supplier but was informed the stool was no longer in stock. The supplier recommended an alternative stool (a nursing stool) but the complainant was personally offended by the style of the stool and refused it. The employer asked the complainant to purchase a suitable stool, but the complainant refused on the basis that it was the employer's responsibility (WSIB ARO Decision dated March 23, 2006).

31I note that many of the complainant's claims for WSIA benefits implicitly raised the issue of his physical ability to do suitable available work and/or whether the accommodation offered by the employer was adequate. The employer and the complainant were entitled to challenge any decision of the WSIB to either award benefits or to decline to award benefits or to challenge the employer's assertion that no suitable work was available for the disputed periods. Neither the complainant nor the employer challenged any of the above WSIB determinations, except as described in paragraph 23 above.

32I do not need to determine whether a determination by the WSIB to pay or withhold benefits (where the underlying issue is implicitly capacity to work with or without accommodation) could support an abuse of process argument or form the basis for an exercise of discretion under section 45.1 of the Code. It is sufficient to note that in this case, many of the complainant's allegations were substantially addressed through the WSIA process and that is a factor in my decision not to exercise my discretion to expand the scope of the complaint to include paragraphs 42 to 44 and 46 to 55 of the complainant's statement of facts.

EXPANDING THE SCOPE OF THE COMPLAINT TO INCLUDE REPRISAL POST NOVEMBER 2002

33Should I hear the post-November 2002 to November 2004 allegations of failure to accommodate and disability-related harassment on the basis that they constitute a reprisal against the complainant for filing the January 2002 complaint?

34In some cases, the Tribunal has exercised its discretion to permit the parties to expand the scope of the complaint to add allegations of reprisal which took place after the complaint was filed: Jeffrey v Dofasco 2000 CanLII 20864; Entrop v. Imperial Oil (No. 3) (1994), 1994 CanLII 18413 (ON HRT), 23 C.H.R.R. D/186; upheld at (2000) 2000 CanLII 16800 (ON CA), 50 O.R. (3d) 18 (OCA).

35For the same reasons set out above, I decline to exercise my discretion to expand the scope of the referred complaint to include paragraphs 42 to 44 and 46 to 55 as a form of reprisal under section 8 of the Code. In summary, these allegations do not form part of the continuum of facts or provide a useful context for understanding the ethnic-origin based allegations which form the subject-matter of the referred complaint. The addition of these allegations would substantially prolong these proceedings and adequacy of the employer's efforts to accommodate the complainant between January 2002 and November 2004 has been dealt with in part through the WSIA system.

POST NOVEMBER 2004 FAILURE TO ACCOMMODATE

36The only paragraph in the complainant's statement of facts which raises any post-November 2004 disability related allegations is paragraph 56:

Para 56. On November 14, 2004, Mr. Berisa suffered another injury. As a result of the physical injuries he suffered and psychological issues he developed as a result of his experience working with the City, Mr. Berisa has been unable to return to work.

37To the extent that paragraph 56 of the complainant's statement of facts raises an allegation of failure to accommodate post-November 29, 2004 I would not exercise my discretion to expand the scope of the referred complaint to add this new allegation, as a form of ethnic-origin based discrimination, or as an alleged reprisal for the filing of the January 2002 complaint, for the same reasons as set out above.

38In the alternative, I accept the respondents' submission that the WSIB decision of March 23, 2006 has appropriately dealt with the issue whether the employer had accommodated the employee's disability post-November 29, 2004.

39The WSIB decision dated March 23, 2006 dealt with the complainant's request for full loss of earnings (LOE) benefits from November 14, 2004, stemming from an alleged recurrence of the November 2002 workplace injury. In order to establish eligibility for LOE benefits, the complainant had to satisfy the WSIB that he was medically unfit for work. Part of the WSIB analysis was to consider whether the complainant's position was suitable in light of his physical restrictions and in light of any accommodations offered by the respondent employer. The WSIB concluded that the complainant was not entitled to the LOE benefits beyond November 29, 2004 because the complainant's position was suitable, in light of accommodations offered by the employer.

40I find that the WSIB decision has appropriately dealt with that issue and it would be an abuse of process to hear those allegations again. Alternatively, I would exercise my discretion under section 45.1 of the Code to decline to hear that issue on the basis that the WSIB proceeding has appropriately dealt with it. In reaching that conclusion I have taken into account the following factors:

• The issue of entitlement to LOE benefits post November 2004 subsumes the issue whether the complainant's disability was accommodated;
• The complainant was represented at the WSIB proceedings;
• The WSIB has expertise in assessing the suitability of positions for injured workers;
• The WSIB conducted two on-site ergonomic assessment of the complainant's position in October 2004 and January 2005;
• The complainant had the opportunity to and did testify orally at the hearing to explain how the position was not suitable in light of his physical restrictions;
• The WSIB considered (but ultimately rejected) the complainant's evidence and the evidence of the complainant's family physician;
• There is a right to appeal to the Workplace Safety and Insurance Appeals Tribunal ("WSIAT"); and
• The complainant has exercised his right of appeal; the WSIAT has heard his appeal and a decision is pending.

CONCLUSION

41For the reasons set out above, I am satisfied that it would not be appropriate to exercise my discretion to expand the scope of the referred complaint to add the disability-related allegations set out in paragraphs 15, 16, 18, 19, 21, 36 to 40, 42 to 44 and 46 to 56 of the complainant's statement of facts. I also conclude that it would be an abuse of the Tribunal's process to hear an allegation that the employer failed to accommodate the complainant after his November 2004 re-injury in light of the WSIB ARO decision dated March 23, 2006. In the further alternative, I would exercise my discretion under section 45.1 of the Code to decline to hear the allegation that the employer failed to accommodate the complainant after his November 2004 re-injury in light of the WSIB ARO decision dated March 23, 2006.

42To the extent that the dates of the complainant's work-related injuries and absences are necessary to understand the narrative of events, they may be referred to in the parties' statements of facts.

RESPONDENTS' PRODUCTION REQUESTS

43The respondents requested production of: the medical, psychological and/or psychiatric records of the complainant from February 2000 to present, including an OHIP summary, clinical notes, medical opinions and diagnosis and all specialists' reports; copies of all documents contained in the complainant's WSIB file; copies of all documents contained in the complainant's Long Term Disability file; receipts or records of payment for medical treatment; and T4 forms or related tax forms related to the complainant's income from 2000 to the present. The respondents allege that the material requested is relevant to the disability-related allegations and to the issue of remedy.

44As a result of this decision and the exclusion of disability-related allegations, the documents requested are not relevant to the issue of discrimination.

45In light of the Tribunal's direction to separate the issue of discrimination from the issue of remedy, the request for medical or financial information is premature and denied at this time, without prejudice to the respondents' right to resume its request for production at the time of the remedy hearing, if any.

COMPLAINANT'S AND COMMISSION'S PRODUCTION REQUESTS

46The Commission and the complainant asserted that there is a nexus between the personnel files of the personal respondents and the allegations in the complaint. The respondents disputed any nexus and submit that this is a fishing expedition. The respondents submit that personnel records are confidential records under the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, CHAPTER M.56 ("MFIPPA") that contain medical information, information about marital status, residence, social insurance number, employment history, payroll information, resumes and applications for jobs. While the respondents acknowledged that the provisions of MFIPPA do not prevent them from disclosing the requested documents, they pointed to the protections of MFIPPA as indicative of the privacy interests involved in this request. The complainant submitted in reply that the respondents have stated that there were "investigations, counselling sessions, workplace notifications and disciplinary notations" that may have been placed on various personal respondents' personnel files, in response to the complainants' complaints.

47The standard for disclosure in a human rights proceeding is "arguable relevance", and the party seeking the disclosure must demonstrate a nexus between the information or document sought and the issues in dispute: Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 (Ont. Bd. of Inquiry) at para. 38.

48The Tribunal has previously held that the entire personnel record of a respondent is not arguably relevant simply because the respondent is alleged to have acted in a discriminatory manner: Nassiah v. Peel Regional Police Services Board, [2006] O.H. R. T.C. No. 18 and King v. Toronto Police Services Board, 2008 HRTO 33.

49I find that the entirety of the requested personnel files is not arguably relevant to the allegations of discrimination raised in the complaint. However, I find that any portion of the personal respondents' personnel records that contain "investigations, counselling sessions, workplace notifications and disciplinary notations" related to this complaint are arguably relevant to the issue whether the respondent employer adequately responded to the complainant's allegations of harassment and poisoned work environment.

ORDERS

50The Tribunal confirms the rulings made in Interim Decision 2008 HRTO 223 Berisa v. Toronto (City), 2008 HRTO 223. However, paragraph (5) of the interim decision contained a clerical error which is corrected in para 51 below.

51Paragraphs 15, 16, 18, 19, 21, 36 to 40, 42 to 44 and 46 to 56 of the complainant's statement of facts do not form part of the subject matter of these proceedings.

52The respondents shall produce those portions, if any, of each personal respondent's personnel records that contain "investigations, counselling sessions, workplace notifications and disciplinary notations" relating to any of the allegations of discrimination set out in the Commission's or complainant's statement of facts (except for the excluded disability-related allegations) or relating to any steps allegedly taken by the respondents to deal with those allegations.