HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Andrew Scarlett Applicant
-and-
Hamilton Health Sciences Corporation Respondent
INTERIM DECISION
Adjudicator: Sherry Liang Date: June 1, 2009 Citation: 2009 HRTO 731 Indexed as: Scarlett v. Hamilton Health Sciences Corporation
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 some of the Requests made by the parties and to give directions for the hearing of this matter.
BACKGROUND
2The Application arises out of the applicant's employment at the Hamilton Health Sciences Corporation (HHSC). The Application as filed named only one respondent, Daniel Karschti. The Application alleges discrimination on the grounds of race, colour, place of origin and disability. Paragraph 8 of the Application asks an applicant to describe each event that is believed to be discriminatory. The form states that for each event, an applicant must say what happened, who was involved, when it happened and where it happened. Applicants are told to be as complete and accurate as possible. In filling out paragraph 8, the applicant states simply, "Fired by Dan Karschti on 17/09/2008 via registered mail."
3In completing other parts of the Application, the applicant provides some more information about his claim. In the section on "Public Interest Remedy", he has asked that the Ministry of Health review the HHSC's
use of third party insurance companies. HMO style third party insurance companies have no business in Ontario. They discriminate against workers on behalf of the employer, while the employer hides behind the third party at arm's length.
In section 20 of the Application (Other Important Information), the applicant identifies another individual whom he alleges was treated more favourably than him.
4The applicant also completed Form 1-A, the supplemental form relating to allegations of discrimination in employment. There, he states that he experienced discrimination in being fired, and in being denied sick pay by a "third party insurer". He also refers to the circumstances of his dismissal, stating that his medical condition precluded working until after surgery, that he was ordered back to work twice and then fired. He also states, in support of his claim of race discrimination, that "I am the last remaining person of colour in the cogeneration/building operator position. The others were driven out."
5A number of events have occurred since the filing of the Application. The applicant's union, the Canadian Union of Public Employees, Local 4800 (the union) grieved the denial of sick pay through the Third Party Sick Adjudication Dispute Resolution process established by the HHSC and the union under their collective agreement. By decision dated February 16, 2009, an arbitrator appointed under that process found against the grievance, stating that "the grievor did not offer sufficient supporting medical documentation to meet the definition of total disability and his claim for benefits must fail."
6The applicant filed a Request for an Order During Proceedings on April 2, 2009, asking that the Hamilton Health Sciences Corporation and Cowan Benefits Consulting be added as respondents to the Application. The applicant states, as the reasons for the Request, that he "incorrectly stipulated an individual respondent" and further, that
Cowan Benefits Consultant [Cowan] is integral to this proceeding as they are the third party insurance company acting on behalf of Hamilton Health Sciences Corporation (HHSC). I will also be requesting statistics from Cowan in regards to the racial make up of hospital employees that are accepted or denied short term disability.
7In his Request for Order, the applicant responds to a request for particulars of his claim of racial discrimination from the HHSC by stating that it is a "systemic claim" and referring to his request for statistics from Cowan.
8In a previous Interim Decision, 2009 HRTO 451, the Tribunal provided the parties with a further opportunity to address the Request to add Cowan, and has received Responses from the HHSC and Cowan. Cowan opposes the Request, and the HHSC states that it does not have a "present position pending determination of relevancy and scope of application and determination of the Hospital's Request for an Order." The applicant did not reply to the submissions of Cowan or the HHSC.
9The HHSC has also filed a Request for Order asking for further particulars from the applicant and a direction from the Tribunal concerning the scope of the Application, including a determination of who are the proper parties and the scope of relevant evidence. The HHSC also requests further production, depending on the provision of further particulars.
10The HHSC enclosed with its Request certain correspondence between its counsel and the applicant. One letter from the applicant, dated May 5, responds to a request for particulars from the HHSC. In this letter, the applicant clarifies and narrows the scope of the issues he wishes to pursue in his Application.
11The applicant and the HHSC have both filed documents that they intend to rely on at the hearing of the Application, as well as lists of witnesses and descriptions of the intended evidence of those witnesses. Included in the applicant's documents is a summary of the "Twelve Main Points" and "Twelve Sub-Points" he intends to make to the Tribunal.
12Finally, on May 22, 2009, the applicant filed a Form 3 (Reply to a Response) which appears to be a reply to the HHSC's submissions on his Request for an Order. In the Form 3, the applicant confirms that he does not "wish to re-litigate the issue of sick pay", although he also states that the "arguments, facts and reports surrounding that issue contributes to why I was terminated while medically disabled in violation of the HRTO." He repeats that the main issue he advances is that he was "illegally terminated."
REQUEST TO ADD RESPONDENTS
13Having regard to the Request and responses to the Request, and the information confirming the proper name of the HHSC, Daniel Karschti is removed as a respondent and replaced with the HHSC. The style of cause is amended accordingly.
14The Tribunal does not add Cowan as a respondent. Rule 1.7(c) of the Tribunal's Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may add a party.
15In its decision in Marchese v. Fortino's, 2009 HRTO 25, the Tribunal stated that "[I]t would not be fair, just and expeditious to add a respondent unless there are facts alleged that, if proven, could support a finding that the proposed respondent violated the applicant's rights."
16On my review of the material before me, including the Application, Requests, the applicant's documents, his witness statements, the applicant's summary of the points he wishes to make at the hearing and other correspondence, I conclude that it would not be appropriate to add Cowan as a respondent.
17In support of the request to add Cowan as a respondent, the applicant states that he will be "seeking remedy for discrimination for my disability and against the systemic discriminatory practices of HHSC and its third party insurer." In his letter of May 5, 2009, responding to a request for particulars, he states that his case is about "systemic discriminatory practices in the administration of the sick plan." In the applicant's witness summaries and summary of points he wishes to make at the hearing, he alleges that Cowan's representatives were rude, and that they harass union members. He suggests that either Cowan or the HHSC favours management over rank and file union members in the granting of sick pay.
18None of this, however, supports a finding that Cowan violated the applicant's rights under the Code. I find that the facts alleged, if proven, could not support a finding that the Cowan violated the applicant's rights under the Code, and I do not find it appropriate to add it as a respondent.
SCOPE OF THE APPLICATION
19As indicated above, the Application as filed alleges discrimination in employment in two areas: the applicant's termination from employment, and denial of sick pay benefits. In the letter of May 5, 2009 and the Form 3 filed on May 22, the applicant confirms that he is no longer challenging the denial of sick pay, which was the subject of a binding arbitration decision issued after the filing of the Application.
20The letter of May 5 and Reply filed May 22 also appear to confirm that the applicant is not pursing a claim of discrimination on the basis of race. Having regard to all the material filed by the applicant, it appears that the main issue in this Application is the applicant's termination from employment. It is alleged that the HHSC discriminated against the applicant on the ground of disability in terminating his employment because he was unable to work pending surgery.
21Given the applicant's clarification and narrowing of his position, it does not appear to the Tribunal that the issues at the hearing will include whether the applicant was wrongfully denied sick pay, or whether the applicant was discriminated against on the grounds of race, colour or place of origin. The issues at the hearing will, however, include the allegation that the respondent violated the Code in terminating the applicant's employment because of a disability.
22The applicant's letter of May 5 states that he maintains his position that the HHSC engaged in "systemic discriminatory practices regarding the administration of the sick plan". The respondent has requested that the Tribunal provide directions about the scope of the hearing, and has expressed a concern about the lack of particulars. Having regard to all the material before me, I find it appropriate to provide the following directions.
23At the outset of the hearing, and having regard to the Application, documents filed, witness statements and other materials before the Tribunal, the Tribunal will hear the parties' submissions on whether the applicant has provided a basis for a claim that the HHSC infringed his rights under the Code through "systemic discriminatory practices regarding the administration of the sick plan".
24If the applicant has other facts to submit in support of this allegation, he must provide those in writing to the Tribunal and to the respondent by June 10, 2009. Following the parties' submissions at the hearing, the Tribunal will determine whether there is a sufficient basis to proceed with the allegation of systemic discriminatory practices, or make other directions with respect to the hearing of this issue.
25Subject to further direction from the Tribunal at the hearing, the respondent should come to the hearing prepared to call evidence about its decision to terminate the applicant's employment. Once the respondent has provided its evidence, the applicant will be provided the opportunity to present evidence on this issue. This proposed procedure for receiving evidence does not alter the normal legal burden on the applicant to establish his claim of discrimination under the Code in the termination of his employment.
Dated at Toronto, this 1st day of June, 2009.
"Signed By"
____________________________________
Sherry Liang Vice-chair