Andrew Philip Scarlett v. Daniel Karschti, 2009 HRTO 541

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew Philip Scarlett

Applicant

-and-

Daniel Karschti

Respondent

INTERIM decision

Adjudicator: Kathleen Martin

Date: April 30, 2009

Citation: 2009 HRTO 541

Indexed as: Scarlett v. Karschti

1This is an Application filed on October 8, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (“the Code”). The purpose of this Interim Decision is to address the applicant’s request that Hamilton Health Sciences Corporation (HHSC) and Cowan Benefits Consultants (“Cowan”) be added as parties to this matter; and his request that the Application be amended.

BACKGROUND

2The Application arises out of the applicant’s employment at HHSC. The applicant alleges that he was discriminated against on the basis of race, colour, place of origin and disability when he was denied sick pay and then fired. The respondent, Dan Karschti, is identified as the individual who fired him. The applicant seeks a financial remedy (consisting of sick pay and damages) and other remedies including a requirement that the Ministry of Health review the “Hospital’s use of third party insurance companies…” since they discriminate against workers on behalf of the employer.

3A Response was filed. While only Mr. Karschti had been named in the Application, the Response is described as that of “Hamilton Health Sciences” and contact information is provided for both Mr. Karschti and Hamilton Health Sciences.

4The Response states that the applicant was denied sick pay because he had not provided medical documentation to support total disability and that he was eventually terminated because he was on absence without leave pursuant to a provision in the collective agreement between Hamilton Health Sciences and CUPE 4800, which is the union in the workplace that represented the applicant. The Response refers to Cowan’s involvement in the assessment of the medical certificates of disability submitted by the applicant to support his requests for sick pay.

5As the union was named in the Application as the bargaining agent for the applicant, the Tribunal sent it Notice of the Application. The union has not sought to intervene in the Application.

6The parties attempted mediation, but did not resolve the Application. Hearing dates are presently scheduled for June 22, 23, 24 and 25, 2009.

7On April 2, 2009, the applicant filed the Request seeking to add the aforementioned parties and an order to amend his Application.

8With respect to the HHSC, the applicant states that he incorrectly stipulated an individual respondent, when he meant an organizational respondent, HHSC. The applicant states that he seeks a remedy and damages from HHSC and that he only mentioned Dan Karstchi because he was the manager who fired him. With respect to Cowan, the applicant states that they are integral to his Application since they are the third party insurance company acting on behalf of HHSC. The applicant further states that he wants Cowan to produce statistics regarding the approval and denial of short term disability on the basis of race and ethnicity for the entire length of time that Cowan has been the third party insurer of choice at HHSC. He states that he will be seeking a remedy for “my disability and against the systemic discriminatory practices of HHSC and its third party insurer” as well as other financial losses and injury to dignity, feelings and self-respect.

9The applicant requests an in person hearing to decide his Request.

10Neither the respondent nor Hamilton Health Sciences filed a Response to the Request.

11The proposed respondent, Cowan, filed a Response objecting to their inclusion as a party. According to Cowan, they are not a third party insurer but rather their role is limited to advising HHSC whether employees such as Mr. Scarlett provide sufficient medical information to support a finding of “total disability”, which is required for payment of sick pay pursuant to the terms of the collective agreement. Cowan is not involved in respect to any decisions pertaining to employment matters and states that the decision to limit sick pay to employees who are totally disabled is a matter between HHSC and its union. Cowan also states that on February 16, 2009, an arbitrator appointed pursuant to the collective agreement denied the applicant’s grievance and decided he was not entitled to sick pay, therefore affirming the decision of Hamilton Health Sciences to deny sick pay. Cowan notes that it did not have the benefit of having a copy of the Application when it filed its Response.

DECISION

12Given that a Response has been filed by Hamilton Health Sciences, I see no reason to deny the applicant’s request to add it as a party, subject to clarification of the correct name. However, I find it appropriate to request further submissions prior to determining the Request to add Cowan and the Request to amend the Application.

13Hamilton Health Sciences is directed to advise the Tribunal in writing within 3 days of the issuance of this Interim Decision as to its proper name. If the applicant has any dispute with the name provided, he should advise the Tribunal within 5 days of the issuance of this Interim Decision. Subject to clarification of the name, the Tribunal will amend the title of these proceedings to add either Hamilton Health Sciences or Hamilton Health Sciences Corporation as a respondent.

14With respect to the remaining issues, I order as follows:

1. the Tribunal will provide a copy of the Application and Response to Cowan along with this Interim Decision ;

2. Cowan may provide a further Response to the applicant’s Request to add it as a respondent, within 7 days of the date of this Interim Decision;

3. the respondent Hamilton Health Sciences or Hamilton Health Sciences Corporation may file a Form 11 Response to the Request to add Cowan as a party and amend the Application within 7 days of the date of this Interim Decision.

4. the applicant may provide a reply to the position taken by Cowan and any Form 11 Response that may be filed by Hamilton Health Sciences Corporation within 14 days of the date of this Interim Decision.

15Once the Tribunal has reviewed the additional submissions, it will determine whether the Request to add Cowan and amend the Application can be decided based on the written submissions received or whether a conference call or in-person hearing will be scheduled.

16Apart from any relevance it may have to the Request, the significance of the arbitrator’s decision to deny sick pay on this Application will be dealt with by the adjudicator assigned to hear this matter.

17I am not seized of this matter.