Transcom North America & Asia v. Moore, 2009 HRTO 2287

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Transcom North America & Asia

Applicant

-and-

Vicky Moore

Respondent

DECISION

Adjudicator: Judith Keene

Date: December 31, 2009

Citation: 2009 HRTO 2287

Indexed as: Transcom North America & Asia v. Moore

APPEARANCES

Transcom North America & Asia, Applicant ) Anne Ricci, representative

Vicky Moore, Respondent ) on her own behalf

[1] This is an Application filed on June 9, 2009, under section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant, Transcom North America & Asia Inc., (the employer) alleges the respondent, Vicky Moore, (the employee) breached the terms of the settlement reached between them.

2The employee had made a human rights Application against the employer alleging discrimination in employment on the basis of disability. Both parties agreed they settled the human rights Application on December 16, 2008. Paragraphs 3 and 4 of their settlement are at the heart of this dispute. They read as follows:

3. A representative of the Corporate Respondent in collaboration with the Applicant's medical doctor, will select a medical specialist who will be asked to assess the Applicant's accommodation request not to be scheduled for work on Saturday and Sunday due to her depression, and will provide a report to the parties.

4. The Corporate Respondent and the Applicant agree, subject to paragraph 3, that all parties will abide by the recommendation of the aforementioned specialist.

3The parties agree that an appointment with a medical specialist was made and that the employee attended the appointment. However, no report was prepared and the employer alleges the employee's actions at the appointment constitute a breach of their settlement.

4The employer selected Workplace Medical Corp. ("WMC") as their representative to coordinate the assessment. WMC set up the assessment and advised the employee. Contrary to the terms of the settlement, which stipulate "collaboration with the Applicant's medical doctor", it does not appear the employee's doctor was even contacted before the specialist was selected.

5At the hearing the employer produced four documents: a letter from the medical specialist, an invoice, an "Information/ Instruction Guide", and a "Release of Information/Informed Consent". None of the documents had been disclosed or produced in accordance with the Tribunal's Rules of Procedure. The employee was given time to review the documents. She stated that the letter did not accurately reflect what happened.

6The letter, apparently signed by the specialist, provides some evidence to support the applicant's assertions, although it does not bear out Ms Ricci's assertion that the applicant "had only come to pick up a letter stating that she could not work weekends". I asked Ms Ricci whether she planned to call the specialist to give evidence, and she said that she was not planning to do so.

7I explained to the parties that the letter could be admitted pursuant to section 15 of the Statutory Powers Procedure Act, but that, in circumstances such as these in which the content is contested, the letter could not simply be accepted for the truth of its contents in the absence of authentication by the author of the document, and an opportunity for the respondent to cross-examine the author. With that condition, the employee did not object to the introduction of the documents.

8The letter, written on WMC letterhead and apparently signed by the specialist, described his appointment with the employee. The letter states:

... She read the forms and indicated that she only came to have a letter sent stating that she can work on the weekends or not. She did not agree to having a psychiatric evaluation. She felt that the referring parties in some vague manner were not following the agreement. She wanted the report only to be sent to her family doctor and not to her employer and indicated some issues of feeling this evaluation has somehow potentially violated her issues of privacy...Contact was attempted to be made with Workplace Medical and Ms Moore was given the various forms to take with her to referring party to clarify the various administrative and legal issues.

9The employee disputed some of the contents of the letter. She testified that her understanding of the agreement was that she was to have an evaluation by a psychiatrist to determine whether depression required that she not work weekends, and then his decision was to be sent to WMC, her family doctor and her employer.

10However, when she attended at the specialist's office, she was handed documents similar to the "Information/ Instruction Guide", and the "Release of Information/Informed Consent". Upon reading them, she noted that the specialist's report would be sent to the "referring source" or "referring party" and did not say that the specialist's report would be sent to anyone else. She told the specialist that she had been under the impression that a copy of the report would be sent to her own doctor, and that this was what "the court order" (by which she meant the settlement) had said. She explained "I wasn't pushing-- just asking."

11The specialist had told her "no, he just sends it to WMC". When she then asked if she could use the phone to call her employer, the specialist asked her to leave the room. When the specialist called her back into the room, he said that he had called WMC but got no answer.

12The employee stated repeatedly that the specialist had told her that "WMC makes the decisions", and that no one had indicated to her at the specialist's office that the report would be sent to her family doctor as well as to WMC and her employer. She said that she had wanted to call her employer to "work out whether a copy would be sent" to her own family doctor. She stated that the specialist did not give her a chance to call her employer.

13The employee testified that, when faced with the response from the specialist that "WMC makes the decisions", she told him "oh well, we'll just do the evaluation and we can work this out later". She said she would have signed the forms to allow the specialist to do the evaluation, but the specialist terminated the interview.

14Under cross-examination, the employee stated that she didn't "drive to Toronto not to have the evaluation done". She said that driving to Toronto was not something she does easily. She repeatedly said that she would have been willing to have the evaluation done—"I just questioned him about the forms and he took it way beyond what I was questioning". She stated that she was sure that the specialist knew that she would have been willing to have the evaluation done, and that she told him she was willing to have it done more than once. She felt that it was not fair for the specialist "to turn around and blame me".

DECISION

15On the evidence, it appears that the employer's representative did not select a medical specialist "in collaboration with the Applicant's (employee's) medical doctor". If the representative had done so, it is possible that both parties might have had more information about the process involved.

16As between the version of events contained in the letter and the employee's testimony I am satisfied the employee's testimony is more reliable. The employee was consistent and believable in giving her testimony. The employer's other documents support the employee's testimony that the specialist was adamant he would report only to WMC. Neither document appears to contemplate that the specialist's report would be sent to anyone other than WMC.

17It was not unreasonable that the employee should ask questions of the specialist, as she was clearly mindful of the paragraph in the settlement that provides that the "medical specialist...will provide a report to the parties".

18In my view the employee would have been well within her rights to refuse the evaluation because it was neither set up in accordance with the terms of the settlement agreement and she was provided with no assurance, and in fact was led to believe the contrary, the report would be provided to her in accordance with the terms.

19She did not do so. Rather, I believe the employee when she says she was willing to have the evaluation done and that she wanted to get it done on the day of the appointment so that she would not have to drive into Toronto again.

20I am satisfied the specialist terminated the evaluation and that this was due, in part, to a failure of communication between the specialist, WMC and the employer to accurately communicate a description of the process by which the evaluation was to be conducted. In the circumstances, I cannot conclude on a balance of probabilities that the employee breached the settlement reached between the parties on December 16, 2008.

21The Application alleging a breach of settlement is dismissed.