HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
W. Graydon Robson
Applicant
-and-
St. Andrew’s College and Ted Staunton
Respondents
DECISION
Adjudicator: Andrew M. Diamond
Indexed as: Robson v. St. Andrew’s College
Appearances
W. Graydon Robson, Applicant Self-represented
St. Andrew’s College and Ted Staunton Genevieve Debane, Counsel
Respondents
Introduction
1This is an Application filed under section 53(5) of the Human Rights Code, R.S.O. 1990, c.H-19, as amended (the “Code”), alleging discrimination based on disability in the provision of employment by the respondents. The original complaint was made to the Ontario Human Rights Commission (the “Commission”) on June 21, 2007. That complaint was abandoned and this Application was brought to the Human Rights Tribunal of Ontario (the “Tribunal”) on June 30, 2009.
Background
2St Andrew’s College (“SAC”) is a boy’s private boarding and day school located in Aurora, Ontario. The applicant was employed as a teacher at SAC, and resided in a house on the school grounds. The respondent, Ted Staunton, was at the relevant time, the Headmaster of SAC.
3On February 9, 2007, the applicant was given notice by the respondent SAC that his employment at the school was being terminated as of June 30, 2007 (the end of the school year), but that his salary would continue to be paid for a period after the termination of his employment. Following negotiations, it was agreed that the applicant’s salary would, unless he found alternate employment, be paid until June 30, 2008. No alternate employment was obtained in that period and the applicant was paid until June 30, 2008.
4The parties also agreed that the respondent SAC would continue the group insurance benefits including long term disability benefits. On May 7, 2007, as part of the settlement, the applicant signed a release in favour of the respondent SAC. SAC did not have a third party short term disability policy.
5On June 8, 2007, the applicant tore his Achilles tendon while competing in a lacrosse game. The game had nothing to do with his employment and was not on school property. On June 11, 2007, as a result of his injuries, the applicant asked the respondent Mr. Staunton if he could be placed on short term disability while he recovered from his injury. This request was refused and forms the basis of the applicant’s complaint. The applicant reports that as a result of his injury he suffered restricted mobility for approximately 45 days.
6In short, the applicant submits that he was treated differently than other employees of SAC, that he was “disabled” for 45 days during which time he was unable to look for work, and as a result he should be awarded an amount equal to 45 days pay. The respondents submit that the applicant’s injury did not prevent him from fulfilling his duties to SAC and that he did not suffer a disability. In the alternative the respondents submit that the release signed in favour of SAC on May 7, 2007 bars the applicant from bringing this Application.
Issues and Discussion
7As a preliminary matter, the respondents submit that (a) the applicant’s injury does not constitute a disability as contemplated in the Code; and (b) in the alternative, even if the applicant was disabled, he is barred from bringing this Application due to the fact that he signed a release in favour of SAC; and request that the Application be dismissed for lack of jurisdiction.
8There is also a third issue: the applicant in his written material has suggested that the respondent, Ted Staunton, entered into reprisals against the applicant. However, the applicant did not complain about reprisals in his original complaint to the Commission. The applicant seeks to have the grounds for his Application expanded to include the allegations of reprisal against the respondent Stanton.
Was there a breach of the Code?
9The respondents submit that the applicant has not made out a prima facie case under the Code as he did not suffer from a disability. The respondents argue that the injury was temporary in nature and did not prevent him from completing his remaining job duties, and therefore request that the Application be dismissed pursuant to section 34(b) of the Code. Furthermore, it is submitted there can be no discrimination as he was paid throughout his period of restricted mobility in accordance with the provisions of the agreement reached between the applicant and the respondent SAC.
10The applicant submits that, but for his termination, had he been unable to attend to his duties, it was the practice of SAC to pay their employees while recuperating from injury or sickness. As a result he submits he has been discriminated against since he was treated differently than other employees. As he sets out in his original complaint to the Commission:
The SAC tradition has always been to treat sick or injured teachers with great respect during the period of time known as short term disability, and the school has in fact always continued to pay teachers afflicted by disability their full pay during the first 119 days of their inactivity when [Long Term Disability benefits] through the insurer takes over…
There have been previous instances of short term disability coverage granted to school employees that I have been denied.
11The fact is that the applicant did continue to receive full salary, pursuant to the terms of the termination of employment agreement, while he was injured. He was not precluded from doing anything by the respondents as a result of his injury and, in fact, remained in the residence supplied by SAC after the date he had agreed to vacate it. The applicant argues that, but for his injury, he would have been mobile and in a condition to continue to look for work, and that as he was still an employee of SAC as of the date of injury he is entitled to be treated the same as every other employee and be provided with short term disability. The failure to do so and to thus extend the period for which he received full salary to August 14, 2008 is discriminatory.
12While I agree with the applicant that he was treated differently from other employees who suffered injury or sickness, the applicant has not been able to satisfy me that the discriminatory treatment was as a result of his injury. Instead I am satisfied, based on the facts as plead by the applicant that the difference in treatment cannot be attributed to his injury but instead is directly attributable to his employment status as an employee working under a termination agreement. As a result I conclude that the facts as set out by the applicant do not disclose any Code violation.
Impact of the Release
13Having found that there is no violation of the Code, it is not necessary for me to address the issue of whether the release signed in advance of the applicant’s injury would otherwise preclude the applicant from bringing this Application.
Expansion of the Application to Include the Allegation of Reprisal
14As set out in a series of decisions of the Tribunal, including Tyrell v. Intercall Inc. 2009 HRTO 228:
The transitional provisions of the Code are intended to deal with the subject matter of the complaints filed with the Commission prior to June 30, 2008. The applicant’s allegations of reprisal did not form part of the subject matter of the complaint which was abandoned or the subject of the current Application because the Commission had not amended the complaint to add those allegations.
15As this Application was brought under the transition provisions of section 53(5) of the Code I find that it is not appropriate that the Application be expanded now to include the allegation of reprisal.
Decision
16The facts as plead by the applicant to not make out a prima facie case of a breach of the Code. As a result the Application is dismissed.
Dated at Toronto, this 28th day of September, 2010.
”signed by”_______________
Andrew M. Diamond
Member