Bethoney Fairs v. Coffeesmith Inc., Lisa Smith and Brittany Hopper, 2009 HRTO 1978

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bethoney Fairs

Applicant

-and-

Coffeesmith Inc., Lisa Smith and Brittany Hopper

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: November 20, 2009

Citation: 2009 HRTO 1978

Indexed as: Fairs v. Coffeesmith

1This is an Application filed on August 5, 2009, under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”), alleging discrimination on the basis of “disability” and “record of offences” in employment. The applicant alleges that she was falsely accused by a co-worker of drinking alcohol while on the job and that her employer failed to properly address her concerns regarding this matter.

BACKGROUND

2On September 11, 2009, the Tribunal issued a Notice of Intent to Dismiss the Application because the Application did not indicate how the circumstances alleged in the Application fall within the grounds of discrimination covered by the Code. The Tribunal invited the applicant to provide written submissions within 30 days addressing the issue of how her concerns raise matters which come within the meaning of “record of offences” and “disability” as defined under the Code. The Notice advised that, if the applicant did not file written submissions, the Tribunal would make its decision based on the information in the Application.

3No submissions were received from the applicant in response to the Notice.

RECORD OF OFFENCES

4The term “record of offences” is defined in section 10(1) of the Code as follows:

“record of offences” means a conviction for,

(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or

(b) an offence in respect of any provincial enactment;

5While the Application describes the applicant’s primary concern as being unfairly subjected to allegations of alcohol consumption while at work, the applicant’s narrative, however, does not include any details which suggest that the respondents allegedly subjected the applicant to discrimination on the basis of a conviction for an offence in respect of which a pardon has been granted or an offence in respect of any provincial enactment. As such, there are no facts alleged in the Application to support the allegation that the applicant has a “record of offences” within the meaning of the Code. Consequently, it appears that the Tribunal does not have jurisdiction to deal with this aspect of the Application.

DISABILITY

6Disability is defined in section 10 of the Code:

“disability” means,

(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;

7Under section 10(3), the right to equal treatment without discrimination because of disability includes “…the right to equal treatment without discrimination because a person has or has had a disability or is believed to have or to have had a disability.”

8Without deciding whether the nature of the applicant’s circumstances falls within the definition of disability, I find that the applicant’s allegations with respect to mistreatment on the basis of perceived alcoholism may raise matters which the Tribunal has the power to decide.

ORDER

9I am satisfied that it is plain and obvious from the face of the Application that the applicant’s allegations pertain to the ground of “disability” and are not related to the ground of “record of offences”. Accordingly, the Application may proceed only with respect to the ground of “disability”. The Registrar is directed to serve the Application and a copy of this Interim Decision on the respondents.

10I am not seized of this matter.