Daley v. Eva’s Initiatives for Homeless Youth, 2009 HRTO 160

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Annmarie Daley

Applicant

-and-

Eva’s Initiatives for Homeless Youth

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: February 18, 2009

Citation: 2009 HRTO 160

Indexed as: Daley v. Eva’s Initiatives for Homeless Youth

1This Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (‘the Code”) alleging discrimination in respect of employment on the basis of disability. The material before the Tribunal raises an issue of whether the Tribunal has any jurisdiction over the matters raised in the Application.

2The applicant has been employed by the respondent in various capacities for more than eight years. In October 2008, the applicant applied for a permanent full-time position with the respondent as a Frontline Counsellor. There was a competition, interviews were conducted and the position was awarded to a candidate other than the applicant. The applicant alleges that the decision not to promote her to the Frontline Counsellor position was discriminatory and unfair because the respondent never expressed any concerns about the applicant’s job performance or her performance during previous interviews for this position. The applicant believes that the respondent should have taken her years of service into consideration and promoted her into the Frontline Counsellor position.

3According to the Application, the applicant believes that the employer discriminated against her on the basis of disability because, when advising the applicant that she was not the successful candidate, the respondent told the applicant that she needed to improve her interview skills. Other than this reference to her interview skills, the Application does not disclose any facts about the applicant’s alleged disability.

4The respondent asserts that the applicant never advised that she had a disability or required any accommodation as a result of disability. It asserts that the decision to award the Frontline Counsellor position to a candidate other than the applicant was based solely on the skill, knowledge and abilities of the candidates, as demonstrated during the interview process. It denies that it told the applicant that she needed to improve her interview skills but admits to offering the applicant and all unsuccessful candidates the opportunity to review the interview and obtain feedback.

5The Tribunal’s power to hear and determine human rights applications is based on the Code, which, among other things, prohibits discrimination and harassment with respect to employment on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability. The Tribunal does not have a general power to inquire into claims of unfairness which are not covered by the Code.

6“Disability” is defined in s. 10 of the Code as follows:

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device;

(b) a condition of mental impairment or a developmental disability;

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language;

(d) a mental disorder; or

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”).

7There is an issue in this case about whether the Tribunal has the jurisdiction (power) to hear this matter, given the nature of the disability claimed by the applicant. If the respondent’s decision not to promote the applicant was not based on “disability” within the meaning of the Code, then the matters raised by the Application are not within the Tribunal’s jurisdiction.

8In order to resolve this threshold issue, the Tribunal directs the applicant to provide written submissions explaining how her interview skills are a “disability” within the meaning of the Code.

9Within 20 days of the date of this decision, the applicant must deliver her submissions to the respondent and file them with the Tribunal. If the applicant does not provide submissions by this date or if the applicant’s written submissions do not establish that she alleges discrimination based upon “disability” within the meaning of the Code, the Application may be dismissed. The respondents are not required to make submissions at this stage, unless and until directed to do so by the Tribunal.

10The 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 on the cover letter which accompanies this decision.

11I am not seized of this matter.