Baylet v. Dan Benedict Co-op Homes, 2009 HRTO 2189

Human Rights Tribunal of Ontario

Between:

Albert Baylet Applicant

-and-

Dan Benedict Co-op Homes, Ellen Bowie and Leslie Staddon Respondents

Decision

Adjudicator: David Muir Date: December 16, 2009 Citation: 2009 HRTO 2189 Indexed as: Baylet v. Dan Benedict Co-op Homes

Appearances

Albert Baylet, Applicant | On his own behalf Dan Benedict Co-op Homes | Brent Foreman, Counsel Ellen Bowie and Leslie Staddon, Respondents |

1This is an Application filed on November 28, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code").

2A Case Resolution Conference (hearing) was held on October 16, 2009 in Toronto in accordance with the expectations set out in the Tribunals Rules for Transitional Applications under section 53(3) and 53(5). After hearing the submissions of the parties on the proper procedure to be followed I heard from Ellen Bowie first and then the applicant.

3The Application is dismissed. My reasons follow.

4The applicant alleges in the human rights complaint underlying the Application filed with the Ontario Human Rights Commission in April or May 2005 that the respondent Dan Benedict Co-op Homes (Co-op), his employer at the time, discriminated against him on the basis of a disability when it terminated his employment. He made the following further allegations:

a. He was asked to return keys to the building he had previously supervised and was stripped of the authority to talk to employees. The applicant alleges that he was ordered to remove his tools and as well as personal things from the maintenance rooms and to stay away from all work areas.

b. The Co-op refused to pay him wages for the two week waiting period for short term disability.

c. On June 22, 2004 the Co-op ordered him to remove one of his cars from the parking garage because it was leaking oil. The applicant alleges that every car in the garage leaks oil except his.

d. In August 2004 the applicant alleges that he was ordered to remove personal items from a storage room in the building. The applicant also alleges that he was accused at the same time of having a master key to the building.

e. In October 2004 he was disciplined for things allegedly said and done at a time when the applicant states he was out of the country.

f. In November 2004 he received a letter from the Co-op demanding $9,294.00 in arrears from rent and parking. The applicant alleges that rent is part of his remuneration. A second request was received in March 2005.

g. In March 2005 the applicant alleges that he was asked for an update on his medical condition. The Co-op refused to pay for the report of the physician.

5The applicant alleges that by engaging in these behaviours the Co-op was trying to force the applicant back to work when he was unable to do so because he was, at the time, totally disabled. In October 2004 the applicant had been found to be totally disabled and eligible for long term disability payments which he in fact received until he reached the age of 65. The applicant never contradicted the view that he could not return to work at any material time.

6Despite agreeing that the Application was concerned with the issues as framed in paragraph 4 above, the applicant later alleged at the hearing that the Co-op had failed to offer him modified work as an accommodation. The respondents objected on the basis that this was not an allegation that had been made in the complaint and that it was an improper expansion of the complaint.

7After securing from the Ontario Human Rights Commission the complaint as it was when abandoned and transferred to the Tribunal, I was satisfied that there was no issue with respect to a failure to offer the applicant appropriate workplace accommodations and accordingly the Application will be determined on the basis of the issues as described in paragraph 4.

8A significant sub-text to this dispute flows from the consequences for the applicant of a change in management of the Co-op which occurred not long before his workplace injury and subsequent period of disability. The applicant resented the changes that came with the new management, and the interference in what he not unreasonably saw as reasonable entitlements of his employment.

9The applicant alleges that one of the underlying motivations for the actions outlined in the complaint, in particular paragraphs 4 a, c and d, was the fact that he had been injured and was on a leave of absence. The position of the respondents was on the contrary that all of these actions on the part of the Co-op were a consequence of a new management company with marching orders to do everything by the book. The respondent Bowie, a central player on the respondent side, was an employee of the management company and not the Co-op.

10The evidence of the respondents was that the new management company was imposed on the Board of Directors by the Region of Peel, the funder of the Co-op. It was the evidence of the respondents that the Region had directed the management company to clean up operations of the Co-op including dealing with a significant arrears of rent. All transactions were expected to be documented and done "by the book". As a result, a number of informal arrangements the applicant had with the Board of the Co-op were undone during this period.

11For example the respondents agree the applicant was asked to remove some personal items from an unused storage room. The evidence of the respondent Bowie was that the applicant's use of the storage room was only discovered as a consequence of his absence from work during a routine inspection by his temporary replacement. It was the evidence of Ms. Bowie that she could not find any authorization for the applicant's use of the space and, because of liability and other issues, asked him to remove his personal items. Similar explanations were offered in respect of the other allegations in paras. 4 a, c and d.

12I heard no evidence with respect to paragraphs b and e and make no findings in respect of them.

13I accept the applicant's contention that the Board had allowed him benefits and perks beyond his strict contractual rights and in exchange, no doubt, for extras that he provided as well. However it does not follow from the fact that the Co-op changed, or was required to change its position on the use of Co-op space and parking allocations, that these things were being done as a consequence of his disability.

14The most significant allegation was that the Co-op began to demand rent for his apartment, as well as one of the three parking spaces he was using. However, the allegations as framed significantly overstate the facts. As part of his remuneration the applicant was entitled to an apartment rent free. He was also entitled to one or more parking spots - there was a dispute about whether he was entitled to one or two. It appears that when his income was initially provided to the third party insurer no account was taken of the fact that included in his income was some amount attributable to rent.

15It is not disputed that the Co-op made a demand for payment of rent and it is not clear when the error described above was discovered. From the applicant's perspective the issue was badly handled. But, in the end, the applicant did pay the Co-op an amount reflecting the portion of his LTD benefits which were attributable to rent after receiving a corresponding sum from the insurer. I am not satisfied there is any evidence of discrimination based on disability or differential treatment of the applicant attributable in any way to his disability.

16As regards to the demand for rent of a third parking spot, Co-op management was unable to find documentation for a third parking spot. The contract of employment only provided for one space. The applicant testified that the arrangement for the second and third spots was informal and verbal As part of its mandate to reduce arrears, the Co-op asked the applicant if he could provide documentation in support of a third rent free parking spot. He could not because there was none. I accept the applicant's evidence of a verbal understanding but am unable to conclude his disability was a factor in the decision to ask him to pay for the third spot or that the request reflects differential treatment based on disability.

17The evidence with respect to the allegation in paragraph (e) was that the parking garage was going to be cleaned and, as is routinely done, owners of cars which appeared to be leaking oil were asked to remove them pending the clean up. The evidence was that the applicant and others received a notice to move their vehicles. I find no differential treatment in this.

18As regards the allegations that the respondents discriminated against him when he was asked to provide updated medical information, an employer is entitled to ask for and receive limited medical information regarding the employee's medical status and ability to return to work with or without accommodations.

19In conclusion there is no basis to conclude that any of the conduct of the respondents was as part of a pattern of behaviour intended to force the applicant back to work.

20The applicant finally alleges that the employer discriminated against him when it terminated his employment in April 2005 after little more than a year off work. Although not framed in this manner in the complaint, the question I put to the respondents was whether or not the termination was premature. The respondents stated in response that it was not, and that in consideration of all of the circumstances including the inability or unwillingness of the applicant and/or his physician to provide any basis for thinking that the applicant was ever going to return to work it had little choice.

21The only information that the respondents received from the applicant was that he was unable to return to work. The information being provided to the respondents by the third party insurer was that the applicant was totally disabled and not able to return to his work. The respondents wrote to the applicant on March 4, 2005 indicating that they had received information from the third party insurer to the effect that the applicant was unable to return to work at that time. The letter goes on to state that the employer had been and remained willing to accept a return to work on modified duties and requested the applicant have his family physician conduct a functional abilities analysis and "the prognosis for your return to work". By letter the same date the respondents asked the applicant's family physician three questions: when he would be able to return to work; what duties or modified duties he was capable of performing; and what the prognosis for recovery was?

22The applicant's physician responded in answer to the three specific questions above: that he could not give a prognosis for a return to work; that his office was not set up to conduct functional assessments; and that he could not provide a prognosis for recovery. The respondents by letter to the applicant's physician dated April 5, 2005 and copied to the applicant asked for further information and asked that the family physician contact them by telephone to discuss a potential return to work. No response was received from either the applicant or his physician.

23The respondents, indicated that in their view the contract of employment had been frustrated. They stated at the hearing that in the circumstances that was an appropriate conclusion to reach. The applicant agreed that it was important to have an live-in superintendent. The applicant did not dispute the fact that the respondents could not recruit another live-in superintendent unless he left the position because so long as he remained in the position he was entitled to an apartment in the building.

24Equally importantly the respondents sought medical information about the possibility of a return to work, with or without accommodations and were given no information to contradict what they had been told to that point - that the applicant was totally disabled and could not return to work. The applicant at no point indicated that his medical situation had changed or that he could return to modified duties.

25In these circumstances I find that the respondents did not fail in their obligation to the applicant to accommodate his inability to work to the point of undue hardship.

26The Application is dismissed.