Lastella v. Oakville Hydro Corporation, 2009 HRTO 1722

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rafaele Lastella Applicant

-and-

Oakville Hydro Corporation, Dan Steele and Marcia Best Respondents

INTERIM DECISION

Adjudicator: David Muir Date: October 20, 2009 Citation: 2009 HRTO 1722 Indexed as: Lastella v. Oakville Hydro

WRITTEN SUBMISSIONS BY

Rafaele Lastella, Applicant ) John Evans, Counsel Oakville Hydro Corporation, Dan Steele and Marcia Best, Respondents ) Peter J. Thorup, Counsel

1This is an Application filed September 29, 2008 under section 53(3) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant alleges in a complaint filed with the Ontario Human Rights Commission in June 2007 (the “complaint”) that his right to equal treatment in employment was violated by the respondents when his employment was terminated on January 4, 2007. This Interim Decision deals with a preliminary issue regarding the relevance and admissibility of a medical report to the issues as framed by the complaint.

3The document in question is a medical report dated March 15, 2007. For purposes of this decision, I will assume that the assessment and the resulting report were undertaken to resolve a dispute about the applicant’s entitlement to short term disability benefits provided by the respondent employer.

4In canvassing these issues, I am relying upon the allegations of the parties which I have assumed are capable of proof. No evidence has been led and accordingly no findings of fact have been made. I have also assumed for purposes of this decision that the medical report in issue is potentially probative of the applicant’s health prior to the assessment upon with it is based. As I indicated at the hearing last day, the extent to which the report is evidence of the applicant’s health prior to March 2007 is a potential issue in dispute.

The Subject Matter of the Application

5The starting point for any consideration of the relevance of evidence is the issues in dispute as framed by the complaint underlying the Application. This question was canvassed at some length in an earlier decision, 2009 HRTO 933, defining the scope of this Application. A Transitional Application made under section 53(3) of the Code must be based on the subject matter of the complaint. The Tribunal has repeatedly held that the Rules for Transitional Applications under section 53(3) and 53(5) do not allow for the expansion of the allegations made in a complaint except in very limited circumstances.

6In his complaint, the applicant alleged generally that his right to equal treatment in employment without discrimination on the basis of disability was infringed by the respondents and that the respondents failed in their obligation to accommodate his disability contrary to sections 5 and 17(2) of the Code.

7The particulars of the complaint are paraphrased below:

a. In May 2001 the applicant commenced employment with the corporate respondent in the position of SCADA Protection and Control.

b. On January 2, 2007, the applicant alleges that he worked his regular day and at the end of the day left work as scheduled. On January 3, the applicant alleges he emailed his superior to advise that he was taking a vacation day. This was common practice in the applicant’s experience. The applicant also indicated to his supervisor that he was not felling well.

c. On January 3, 2007, the applicant alleges that he attempted to log on to the respondent corporation’s email but was locked out.

d. On January 4, 2007, the applicant alleges that he attended his doctor’s office at 9:00 a.m. but because he had no appointment, he was required to wait. At approximately 1:30 p.m., he saw his physician who diagnosed stress and depression. The doctor prescribed Lorazepam and wrote a note for the corporate respondent indicating that the applicant should be off work for four weeks. The applicant alleges that when he got home, he immediately emailed the employer and attempted to provide it with the information necessary while he was absent from work.

e. On January 5, 2007, the applicant received an email from the employer indicating that he had been terminated and acknowledging receipt of the doctor’s note.

f. The applicant also states that he had attempted to provide the employer with the information it required, in particular the SCADA password, but that the respondents had not provided him with the information he needed in order to comply with their requests.

g. The applicant alleges that prior to his termination there were no serious performance criticisms and no indication that his job was in jeopardy.

h. The applicant alleges that the termination of his employment was based on the fact that he suffered from a disability that required him to have four consecutive weeks off work. It is further stated that he particularly believed this as, in he past, he had always been required to put his vacation and personal needs on hold in order to be available to the respondents 24/7.

8Subsequent to the filing of this Application, a dispute arose about a number of new allegations that were raised by both the applicant and the respondents. As indicated earlier, I dealt with those issues in 2009 HRTO 933. Fresh allegations arising out of the March 2007 medical report were considered in that context.

9The report in question styled an “Impartial Psychiatric Examination” followed an examination conducted by Dr. Brian Hines on March 8, 2007 and is dated March 15, 2007. The following passage captures the conclusions of the physician and is relied upon by the applicant:

Mr. Lastella is a married 39-year old man who has worked at Oakville Hydro for five and one-half years. He was terminated on January 5, 2007 and has not worked since. He feels that he was terminated without just cause and has attempted to address his companies concerns. He reported developing symptoms of depression that began to effect his functioning in the summer of 2006. He began treatment with a minor tranquilizer in January 4, 2007 and this reduced his anxiety, He began taking an anti-depressant eight days ago and already feels some beneficial affects from this. He is continuing to take his medication regularly and feels that he is not emotionally able to function at work. He would like to resolve these issues and return to his old position.

10The nub of my earlier decision defining the scope of the Application is captured in the following passages:

12The essence of the complaint is the allegation that Mr. Lastella was terminated by his employer because he was in need of four weeks off work to address a medical issue. There is no suggestion in the complaint that the disability was caused by the conduct of the respondents or that Mr. Steele had mistreated the applicant for a number of years creating a poisoned work environment. There is no suggestion in the complaint that the disability pre-dates the events of January 2007 or that the respondents ought to have been aware of it.

13To the extent that the additional facts or allegations contained in the January 5 and 7 correspondence and attached material expand the scope of the complaint to include allegations that the work environment was poisoned by the inappropriate and unfair treatment of Mr. Lastella by Mr. Steele and this treatment resulted in a disability Rule 6.3 prevents such an expansion. However, as the applicant points out he is entitled to challenge the bone fides of the respondents’ decision to terminate him. The response includes allegations of performance issues going back several years prior to Mr. Lastella’s ultimate termination in January 2007. The applicant is entitled to challenge those allegations and to the extent that the respondents’ decision might be said to have been made in bad faith or was simply irrational, it is open to the applicant to ask that an inference be drawn that the decision was informed to some degree by his disability.

14To be clear this is not a wrongful dismissal case and it is by and large irrelevant whether or not there was just cause for the termination. Rather the human rights question that arises is whether or not, a factor in the decision to terminate Mr. Lastella on January 5 2007 was that he was or was perceived to be a person with a disability who required four weeks off work to attend to his medical issues. In answering that question it does not matter from a human rights perspective if the respondent Mr. Steele was a terrible manager who did not appreciate Mr. Lastella’s contributions as alleged by the applicant or even that he mistreated him. Equally the causes of Mr. Lastella’s disability are not relevant to the question raised by the complaint, nor is the question of when he began to experience the disability given that the respondent has agreed that on January 5th, 2007 he was a person with a disability.

15In my view, it would significantly detract from the expeditious nature of the proceeding to entertain Mr. Lastella’s allegations respecting Mr. Steel’s performance as a manager and the causes of his disability. The applicant states that it is all merely background and is not intended to expand the scope of the complaint. As indicated above as background much of it will be irrelevant to the issues identified in the complaint and will I find add significantly to the hearing time required to deal with this Application.

16Accordingly except to the extent that the new allegations described in paragraphs 6 (a) (b) (c) and 7 above are responsive to allegations of poor performance relied upon by the respondents to support their decision, they are not properly part of this Application and are irrelevant to any issue in dispute. Obviously which of the multitude of allegations made by Mr. Lastella is captured by this determination will be difficult to set out precisely before hearing the evidence of the respondents. I will canvass the implications of this below.

11The applicant states that the medical report is arguably relevant to the issues in dispute and should be admitted for a number of reasons:

a. It sheds light on the nature and extent of his disability.

b. The respondents asserted for the first time well after the complaint was filed that the decision to terminate him was made prior to January 5, 2007 and was for reasons related to performance issues arising in the summer of 2006. The applicant, while denying such allegations, alleges that the he was suffering from a disability and experiencing difficulties in the workplace commencing in the summer of 2006. The report, according to the applicant, confirms his assertion that he was disabled from the summer of 2006 to the date of his termination and beyond.

c. The applicant states that the employer relied upon an incomplete diagnosis at the time of the termination and/or failed to undertake a proper investigation of his condition at the time that they terminated his employment. Had the employer conducted a proper investigation of the nature and extent of his disability at the appropriate time it would have learned what is revealed in Dr. Hines’ report – in particular that his illness may have begun in the summer of 2006.

12I have considered the submissions of the parties and have concluded that the medical report is arguably relevant to the issues as framed by the complaint. My reasons for this determination as well as my conclusions about the extent of its relevance are set out below.

13As indicated at the outset of this decision, the essence of the complaint underlying the Application is that the employer terminated the applicant’s employment because he required a four week medical leave. It is also stated, based on the same particulars, that the employer failed to accommodate his disability to the point of undue hardship.

14In response, the respondents state that they terminated the applicant for cause and further that the decision had been made, in principle at least, in the summer of 2006. The respondents acknowledge receipt of a note from the applicant’s family physician on January 4, 2007 and acknowledge that they had this note in their possession when they terminated his employment. Implicitly the respondents reject the notion that they had an obligation to accommodate the applicant’s disability.

15Based on the allegations as set out in the complaint, I determined that the allegations that the applicant’s disability began months prior to his termination; that it was caused by the respondents’ treatment and that the respondents ought to have been aware of it were not issues in this Application. I also concluded that his state of health prior to January 5, 2007 was not in issue as the respondents conceded that he was a person with a disability at the time they terminated his employment. It follows that to the extent the medical report is relied upon as probative of those allegations, it is not admissible as those are not issues in this case.

16The applicant states that the employer conducted an inadequate investigation of his illness at the time of his termination and states that if the employer had conducted a proper investigation, it would have learned what the medical report reveals – that he suffered from depression with some mild anxiety. The applicant states that the report is arguably relevant because the respondents failed to embark on any kind of investigation of the extent of his disability or when it may have first presented itself. Again, had it done so, it would have received a medical report that would have told it that the applicant’s difficulties may have begun as early as the summer of 2006.

17I agree with applicant’s statement of the law that subsequent event evidence may be admissible if it casts light on the decision making process leading to the termination of employment , or whether or not appropriate efforts were made to accommodate an employee. The applicant states that there appears to have been little or no investigation of his illness or whether or not he could be accommodated prior to his termination on January 5, 2007. It may be, as the respondents’ implicitly claim, that because a decision was made to terminate his employment months prior to the employer being made aware of his illness and the fact that the events of January 2 to January 5 provided further justification for an immediate summary termination, there was no need to consider his disability or the need to accommodate him. However that is clearly an issue in dispute in this case and is clearly included in the complaint.

18As well, although the respondents have agreed that the applicant was disabled on January 5, there may be, within the parameters of the complaint, an issue of when this disability first arose. The applicant appears to have told the employer that he was not feeling well on January 3. He visited the doctor on January 4 and was provided with a doctor’s note which was immediately provided to the employer. I find that the report, to the extent that it may speak to the applicant’s health in the first week of January 2007, is arguably relevant to the question of when the applicant became disabled over the course of events between January 2 and January 5, 2007.

19To be clear, it is open to the applicant to explore the extent to which the respondent employer considered the information it received respecting his health over the time period framed by the complaint and whether, given what it was told by the applicant, further investigation would have been appropriate. It is also open to the applicant to explore the implicit position of the respondent employer that it had no obligation to accommodate his disability in the circumstances. The medical report to the extent that it might speak to these issues, is arguably relevant to the bona fides or appropriateness of the decisions made by the employer at the time including the respondents’ decision to terminate the applicant’s employment when it did.

20It also may be that the medical report is arguably relevant to the issue of remedy. The applicant makes a fair point that it is premature to determine that question and I decline to do so. The applicant may raise the issue again at the appropriate time.

21The applicant also states that the respondent employer has alleged after this Application was filed, that a decision to terminate him, if not the timing of it, was made in the summer of 2006 based on alleged performance issues beginning at that time and therefore, it would be unfair to prevent him from leading evidence that he was ill beginning in the summer of 2006 in full answer to these allegations.

22I do not agree. For the reasons set out above and in the prior decision, whether or not the applicant’s work performance might have been affected by illness in the summer of 2006 is irrelevant to the issues as framed in the complaint - there is no allegation in the complaint that the applicant was ill prior to the events of January 2007 or that the employer ought to have been aware of any alleged illness prior to that time. I also note that there is no suggestion that the contents of Dr. Hines’ report were unknown to the applicant or his representatives at the time, when the human rights complaint was filed with the Commission.

Order

23The medical report of Dr. Hines is arguably relevant to the issues in this Application as framed by the complaint and is admissible subject to the limitations set out above.