Sankar v. Nursing & Homemakers Inc., 2008 HRTO 321

Human Rights Tribunal of Ontario

B E T W E E N:

Leonard Sankar

Applicant

-and-

Nursing & Homemakers Inc.

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: November 28, 2008

Citation: 2008 HRTO 321

Indexed as: Sankar v. Nursing & Homemakers Inc.

1This is an Application filed July 24, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination with respect to employment on the basis of disability.

2The respondent has requested that the Tribunal defer dealing with this Application pending the outcome of a complaint allegedly made by the applicant under the Employment Standards Act, 2000 S.O. 2000, c. 41, (the “ESA”) and substantially based on the same facts as the Application. The parties have not provided the Tribunal with a copy of the complaint and the Tribunal is not aware of the current status of the complaint under the ESA.

3In his Application, the applicant alleges that the respondent terminated his employment because he called in sick one day due to vomiting, even though he provided a doctor’s note for the absence. The applicant alleges that, in so doing, the respondent discriminated against him with respect to employment on the basis of “disability”.

4The respondent asserts that the Application fails to make out a prima facie case that the applicant has been discriminated against on the basis of “disability”. The respondent asserts that the applicant does not plead that his absence from work on the day in question was due to a “disability” within the meaning of the Code or that he sought accommodation from the respondent in respect of a “disability”. The respondent further alleges that its reasons for terminating the applicant’s employment were related to performance issues, and completely unrelated to his absence on the day in question.

5There is a threshold issue in this case about whether the applicant’s absence from work on the day in question was due to a “disability” within the meaning of the Code. This is a threshold issue because, if the Tribunal finds that the applicant’s absence from work on the day in question was not due to “disability” within the meaning of the Code, then there is a question as to whether the facts asserted by the applicant could establish a violation of the Code by the respondent.

6The Tribunal has determined that the most fair, just and expeditious way to proceed is to hear evidence on and determine the threshold issue of whether the applicant’s absence from work on the day(s) in question was due to “disability” within the meaning of the Code. To this end, the Tribunal will schedule a one-day hearing to allow the parties to present evidence and/or arguments on the following issues:

a. Whether the applicant’s absence from work on the day or days in question was due to “disability” within the meaning of the Code;

b. If the Tribunal finds that the applicant’s absence from work on the day or days in question was not due to “disability” within the meaning of the Code, then, assuming all of the other facts asserted by the applicant to be true, could the applicant establish a breach of the Code by the respondent? Put another way, if the applicant’s absence from work on the day or days in question was not due to disability, does the Application make out a prima facie case of discrimination under the Code?; and,

c. If the Tribunal is satisfied that the facts of the Application could establish a breach of the Code, it is appropriate to defer the Application pending the outcome of the complaint under the ESA?

7In order to ensure that the parties have a full opportunity to address these issues, the Tribunal makes the following direction:

No later than 14 days prior to the hearing, all parties shall file with the Tribunal, and deliver to the other parties, copies of all documents and materials and an outline of any additional facts that they wish to rely upon at the hearing of the issues identified above, including but not limited to documents relating to the alleged ESA complaint and a copy of the complaint itself. The parties need not exchange documents which have already been served on the parties and filed with the Tribunal.

8The applicant should note that if the Tribunal determines based on the evidence and arguments presented that his absence from work on the day in question was not due to “disability” and that the facts alleged in the Application could not establish discrimination on the basis of disability within the meaning of the Code, the Application will be dismissed.

9The Tribunal draws the applicant’s attention to the “Applicant’s Guide” and in particular to sources of legal assistance and representation available to applicants, including support that may be available through the Human Rights Legal Support Centre. The Guide and links to other sources of information are available on the Tribunal’s website, www.hrto.ca, or from the Registrar whose contact information is contained in the cover letter attached to this decision.

10This matter is referred to the Registrar to schedule a one-day hearing. I am not seized.