Cynthia Lafond v. South Essex Community Council, 2009 HRTO 1862

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cynthia Lafond Applicant

-and-

South Essex Community Council, Canadian Union of Public Employees 4523, Carolyn Warkentin, Rae-Anne Scratch and Maureen Sutherland Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty Date: November 9, 2009 Citation: 2009 HRTO 1862 Indexed as: Lafond v. South Essex Community Council

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended, (the "Code") on January 19, 2009. She alleges discrimination in the context of employment on the basis of disability. More specifically, she states that her employer did not allow her to use sick leave for medical appointments and treatments related to her disability. She alleges that her Union failed to advance her grievance in this regard. She also makes a number of specific accommodation-related allegations and claims harassment and a poisoned work environment.

History of proceedings

2The respondents sought the dismissal or, alternatively, a deferral of the Application on the basis that a policy grievance addressed the substance of the Application. In an Interim Decision dated August 12, 2009, 2009 HRTO 1244, the Tribunal denied the respondents' request for dismissal, but deferred the Application pending the resolution of a policy grievance. The Tribunal noted:

It is not likely that the arbitrator's decision on the policy grievance will resolve all of the subject-matter of this Application, as the Application is focussed on the issue of accommodation of an individual employee and on an allegation of harassment. However, the decision may resolve an aspect of the Application: whether the collective agreement allows the employer to require employees to use "personal days" for sick leave purposes.

3In early September, South Essex Community Counsel ("South Essex") advised the Tribunal that the employer and the union had resolved the policy grievance on the following basis:

a. employees are expected to schedule medical appointments outside of work hours wherever possible. If this is not possible, the employee should inform his or her co-ordinator of the time off required and either request an allotment from personal time or suggest a schedule to make up the time. Alternatively, the employee may take unpaid time off.

b. Where an employee requires extended time off for a medical appointment that cannot reasonably be accommodated under paragraph a or where the employee has no personal time allotment remaining, the employee may ask that banked sick leave be applied, provided that appropriate medical documentation is provided.

4On September 22, 2009, the Tribunal sent a letter to the parties, drawing their attention to Rule 14 of the Tribunal's Rules of Procedure, which sets out the procedure for reviving an application that has been deferred.

5The Applicant filed a Request for Interim Remedy ("Request") on September 29, 2009. She seeks to reactivate the Application and asks the Tribunal to accord her interim relief, which would allow her to:

a. use sick leave for medical treatment; and

b. continue working in Windsor on a reduced schedule set out in a medical note.

The medical note, signed by Dr. Collins and dated August 31, 2009 states:

To whom it may concern,

This letter is to inform you that my patient, Cyndi Lafond, is medically able to work only from 8:30 to 3:30 daily.

6The Applicant filed a Request for an Order During Proceedings ("RFOP") asking that the Application proceed and that the RFOP be consolidated with the Request for Interim Remedy.

7On October 7, 2009, South Essex responded to the Request for Interim Remedy, objecting to the interim relief requested. It argued that the medical note provided does not give sufficient information to determine the applicant's need for accommodation. South Essex indicated that it has taken steps with the applicant to obtain the more detailed information it says it needs to consider the applicant's request for accommodated work hours.

8South Essex also contends that the responsibilities of the applicant's job require her to be at work until the late afternoon. To accommodate the applicant would require hiring additional staff and, given financial constraints, this would constitute an undue hardship.

9The applicant filed a Reply on a Form 19, in which she, among other things, explains her need for reduced work hours and challenges South Essex's contention that the interim relief requested would create an undue hardship for South Essex.

10On October 27, 2009, the Union filed a Response to the Request for an Order. The Union argues that the Application should not be revived because the resolution of the policy grievance addresses, at least in part, the substance of the Application. The Union states that extent to which the applicant agrees or disagrees with the terms on which the policy grievance was resolved is not a relevant consideration for the Tribunal. The Union also argues the Applicant fails to establish a prima facie case and that it ought to be dismissed as a result.

Request to reactivate the application

11The Tribunal is satisfied that the Application may be reactivated. I concur with the comment made in the earlier Interim Decision: the resolution of the policy grievance does not appear to address the entire subject-matter of this Application.

12However, in its Response to the Request for an Order, the Union asks that the Application be dismissed because the resolution of the grievance addresses at least part of the Application. I am not able to determine this issue in the context of the applicant's Request for an Order.

13First, the Union's position raises a question, under section 45.1 of the Code, about whether a negotiated settlement between a union and an employer is a "proceeding" that "appropriately" dealt with a part of the Application.

14Second, the Application raises a number of related issues and contains allegations of a poisoned work environment. In the context of these factual intricacies, the Tribunal would have to assess to what extent, if any, another proceeding has appropriately dealt with all or part of the substance of the Application.

15It would be important for all parties to have an opportunity to make submissions on both these issues.

16Third, the Union's position was articulated in a Response to a Request for an Order. If the Union is seeking the dismissal of all or part of the Application, it would be appropriate for it to make this request in a Request for an Order During Proceedings. This process would give all the parties an opportunity to address the issues raised.

17For the above reasons, the entire Application is revived without prejudice to the parties' ability to seek a dismissal of all or part of the Application on the basis of section 45.1 of the Code.

Request for interim remedy

18Granting an interim remedy is an extraordinary step. It involves requiring the respondent to take certain actions prior to a hearing on the merits of the Application.

19The conditions for awarding an interim remedy are set out as follows in Rule 23.2:

The Tribunal may grant an interim remedy where it is satisfied that:

a) the Application appears to have merit;

b) the balance of harm or convenience favours granting the interim remedy requested; and,

c) it is just and appropriate in the circumstances to do so.

20In TA v. 60 Montclair, 2009 HRTO 269 at para. 23, the Tribunal held that the fundamental consideration in determining whether to award an interim remedy is:

whether an interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found.

21The Tribunal in TA v. Montclair, supra, also noted that an applicant seeking an interim remedy will have a significant onus to meet to demonstrate that the Request meets the three elements in Rule 23.2 and is necessary to further the remedial objects of the Code. See also Kwan v. Hospital for Sick Children, 2009 HRTO 621.

For the reasons that follow, I find that it is not appropriate to grant the Request in the circumstances.

22I disagree with the Union's contention that the Applicant has not made out a prima facie (or meritorious) case. The threshold in this regard is not onerous. It is sufficient to find that the applicant's assertions, if supported by the evidence, would amount to violations of the Code. In my view, the Application meets this standard. I also find that, on its face and for the purposes of Rule 23.2, the Application appears to have merit.

23However, in my view, the balance of convenience or harm does not favour the applicant and it would not be just and appropriate to grant the remedy requested.

Pursuant to Rule 23.3:

A Request for an Interim Remedy must include:

a) a detailed description of the order sought;

b) one or more declarations signed by persons with direct first-hand knowledge detailing all of the facts upon which the Applicant relies; and

c) submissions with respect to the merits of the Application, the balance of harm or convenience and why an interim remedy would be just and appropriate in the circumstances.

24In this case, the only first-hand information provided by the Applicant to support her Request is a brief note dated August 31, 2009, signed by her doctor. The note indicates that that applicant requires specific modified work hours, from 8:30 to 3:30.

25Without commenting on whether this note is sufficient to support a request for accommodation, I have serious concerns about issuing interim relief based on this information alone. Although the applicant makes submissions explaining her need for accommodation, there is no direct evidence that would allow me to, for example, evaluate whether there is a medical reason for the specific hours of work proposed by the doctor or whether another form of reduced hours could constitute appropriate accommodation.

26Based on the information before me, I cannot conclude that it would be just or appropriate to order South Essex to implement the requested work schedule in advance of the hearing. This does not mean that South Essex is not required to provide appropriate accommodation to the applicant between now and the date of a hearing. The employer's obligation in this regard is ongoing and not impacted by my conclusion that the extraordinary step of interim relief is not warranted in the circumstances.

27I am not convinced that the balance of convenience favours granting the request or that granting the Request is necessary to ensure the Tribunal can provide a full, effective and appropriate remedy should the Application be decided in favour of the applicant.

28Accordingly, the Request for Interim Relief is denied.

29I am not seized.