Vincent Puleio v. Moneris Solutions Corporation, Linda Bruce and Patricia Black, 2010 HRTO 2059

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vincent Puleio Applicant

-and-

Moneris Solutions Corporation, Linda Bruce and Patricia Black Respondents

Interim decisiON

Adjudicator: David Muir Date: October 8, 2010 Citation: 2010 HRTO 2059 Indexed as: Puleio v. Moneris Solutions

WRITTEN SUBMISSIONS BY

Vincent Puleio, Applicant ) Grace Permaul, Counsel Moneris Solutions Corporation, ) Linda Bruce and Patricia Black, ) Kimberly T. Morris, Counsel Respondents )

1This is an Application filed June 30, 2009 and perfected on October 30, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with a Request for Order During Proceedings filed by the respondents. The parties have provided their written submissions on the issues raised.

2The human rights complaint filed with the Ontario Human Rights Commission (the complaint) is dated April 19, 2006. The applicant alleges in the complaint that his right to be free from discrimination on the basis of age and disability was infringed by the respondents.

3The particulars of this general allegation are as follows:

a. The applicant self-identifies as a 51 year old person with hyper-tension. He alleges that he under the care of a psychologist and taking medication.

b. The applicant states that he was employed by the corporate respondent as an “Account Co-ordinator” beginning in 2000. The applicant alleges that when he began his employment the work doubled and as a result he began to experience stress and anxiety. At that time he was diagnosed with hypertension. The applicant alleges that the respondent Bush became aware of his condition in November 2004 when he took a sick leave.

c. The applicant alleges that his position was downgraded in 2002 and he applied for the position of Team Leader. The applicant alleged that at that time he was denied the position in favour of a “young woman with no experience.”

d. The applicant alleges that in 2004 the position of Relationship Manager was given to a man in his mid 20’s that the applicant would have applied for had it been posted. The applicant alleges that the position was not posted.

e. The applicant alleges that in 2005 the position of Relationship Manager was posted and he applied. The applicant alleges that he was not interviewed for the position. The applicant alleges that he inquired about his candidacy but Human Resources did not respond to his request.

f. The applicant alleges that in November 2004 he was verbally attacked by the respondent Bruce for work related issues that were the responsibility of the help desk. The applicant alleges that the verbal altercation caused him to become ill and when he excused himself, “management” asked him if he was quitting.

g. The applicant alleges that when he returned to work from a sick leave in February 2005 he had medical information to justify his absence. Despite this the applicant alleges that was given an unreasonably heavy work load, his work station was assigned to a new employee and he was given a desk with a faulty computer.

h. The applicant alleges that despite medical information to support his illness he was assigned to several new accounts.

i. The applicant alleges that on December 5, 2005 he was called to a meeting to discuss an email he had sent to his supervisors raising the possibility of a problem with the volume of accounts he had been assigned. The applicant alleges that the respondents had not read his email in time and held him responsible for all of the problems that had arisen while he had been away on a vacation.

j. The applicant states that he was off work on a medical leave from December 5, 2005 to February 26, 2006. The applicant alleges that he provided the respondent with a letter from his treating physicians to the effect that his return to work date would be dependent upon the respondent employer accommodating the applicant in an alternative position.

k. The applicant alleges that a meeting was scheduled on February 14, 2006 with the Director of Human Resources. The applicant alleges that the meeting was cancelled by the Director.

l. The applicant alleges on February 24, 2006 he received a letter from the respondent indicating that he was expected to return to his existing position and that if the applicant did not return by March 1st, they would assume that he had voluntarily terminated his employment.

4The respondents filed a Request for Order on September 13, 2010 raising the following issues:

a. That new issues have been raised that are not captured in the complaint. The respondents state that there is no basis in the complaint for the Tribunal to adjudicate a reprisal allegation, a failure to accommodate to the point of undue hardship or harassment on the basis of disability.

b. That the Application is untimely.

Delay

5The respondents state that the Application is untimely. Parts of it may be but not for the reasons raised by the respondents. My reasons for this tentative conclusion follow,

6Section 34 of the Code provides:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

34(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

7The Tribunal has interpreted these provisions as requiring that the applicant have filed his human rights complaint at the Ontario Human Rights Commission within one year of the incident or the last of a series of incidents which it is alleged violated the Code: See Boncori v. TRW Canada 2009 HRTO 564. The Tribunal has also found that there can not be significant gaps in time between incidents in a series for it to be considered a series for purpose of the section. See Nurse-Bernett v. Kerry’s Place Autism Services 2010 HRTO 1223.

8Finally, the Tribunal may only deal with an application filed more than a year after the incident, or last of a series of incidents, if it is satisfied that the delay in filing the application was incurred in good faith and there is no substantial prejudice to the respondents.

9The respondents’ submission focus on when this Application was filed at the Tribunal. As set out above that is not the appropriate analysis. The question is whether the complaint was filed at the Commission within a year of the last, or the last of series of, incidents. It is clear on the face of the complaint that the final allegations relate to events in February 2006. The complaint was filed with the Commission in April 2006. The Application is accordingly timely.

10It does not follow from this conclusion that all of the elements of the complaint are timely. As can be seen from a review of the particulars of the complaint there are significant gaps between the incidents being plead. It is also not clear whether some or all of these allegations are being relied on as substantive elements of the complaint or merely background. For example, the applicant alleges that when he was hired the work load doubled and that he subsequently was diagnosed with hypertension, while these facts likely are important background information it is not clear how, on their own, they could be relied upon to support a violation of the Code.

11In terms of potential delay concerns there is a gap of perhaps 2 to 3 years between the allegedly discriminatory hiring process in 2002 and the next similar incident in late 2005. This issue should be clarified before the hearing commences.

Scope of the Application

12The respondents also state that this Application is not properly constituted to consider issues of reprisal, “disability harassment”, and an alleged failure to accommodate. I take it that the essence of the submission is that these issues do not flow from the complaint and are an improper attempt to expand the scope of the complaint.

13To a degree I agree with the respondents. My reasons for this conclusion follow.

14An Application under section 53(5) must be based on the complaint filed with the Commission. Rule 12 of the Rules of Procedure for Transitional Applications under Sections 53(3) and 53(5) provides as follows:

12.1 To file a section 53(5) Application an Applicant must complete the Application (Form TR-1), deliver it to the Respondent(s) and file it with the Tribunal. A complete Application must provide the information requested in every section of the Application form and must include all required attachments.

12.2 The completed section 53(5) Application (Form TR-1) must be filed between January 1 and June 30, 2009 and must include:

a) the complaint or the amended complaint filed at the Commission; and,

b) the Commission complaint file number.

12.3 Section 53(5) Applications made in accordance with these Rules must be based on the subject matter of the complaint or amended complaint filed at the Commission.

12.4 Where an Applicant wishes to add parties, combine two or more complaints to be dealt with together as a single application, or, having regard to Rule 12.3, amend the complaint, the Applicant may identify any such requests in their Application.

15Generally speaking section 53(5) applications will be limited to the subject matter of the complaint made to the Commission and the Tribunal will only exercise its discretion to allow amendments where it is necessary to ensure to the fair, just and expeditious adjudication of the application.

Failure to provide appropriate accommodations

16If there is an issue that is clearly articulated in the complaint it is the claim that the respondent employer failed to accommodate the applicant to the point of undue hardship. The allegations with respect to that issue are set out most clearly in paragraphs 3 (j), (k) and (l) and perhaps (g) above. I am satisfied that the issue of an alleged failure to accommodate the applicant to the point of undue hardship is an issue properly raised before the Tribunal.

Disability Harassment and Reprisal

17There is little in the complaint that relates to these issues and on the basis of the complaint alone I would find that these issues were not properly before me. The applicant states that in considering the proper subject matter of the complaint regard should also be had to the respondents’ Answer to the complaint and any Response provided by the Applicant.

18The applicant states that he provided the Commission with a Response to the respondents’ Answer, which he claims was served on the respondents. In this document the applicant states that he raised the reprisal issue and alleged that a letter from the respondent employer advising the applicant that if he did not return to work he may be terminated constitutes a reprisal. Details were also provided with respect to the allegations of harassment.

19The respondents deny that they were ever provided with any indication that there was a reprisal issue being considered by the Commission. The respondents deny that they were served with a Response to their Answer to the complaint as alleged by the applicant. There is no evidence that this document was served on the respondents and the failure of the Commission to do so is consistent with the usual practice.

20The Tribunal has on several occasions had occasion to deal with the question of how to treat fresh allegations not articulated in the complaint form, but which appear to have been raised by applicants with the Commission. See for example Tyrrell v. Intercall Canada, 2009 HRTO 228. Accordingly, the subject matter of this Application are the allegations set out in the complaint.

21As regards the allegations of harassment on the basis of a disability. I have reviewed the complaint with care and can find no allegations of a vexatious course of conduct in relation to the applicant’s alleged disability that was or should have been known would be unwelcome. There is a description of a dispute about the applicant’s need for accommodation but it is not clear how that inter-change might be described as harassment. However to the extent that the allegations of harassment arises out of the allegations set out in paragraphs 3(g) to (l) above they are properly included in this Application.

22There is no allegation of reprisal in the complaint as set out above. I am not satisfied that the complaint as it was when abandoned at the Commission and filed with the Tribunal included allegations of a reprisal.

Case Assessment Directions

23The Tribunal makes the following Directions with respect to the delay issues canvassed above:

a. The parties will deliver and file their submissions with respect to the delay issues canvassed above. In particular the parties will address whether or not the allegations constitute a series of incidents within the meaning of section 34 having regard to what appear to be significant temporal gaps between some of them, and if some or all of them are untimely whether or not the factors in section 34(2) are present.

b. The applicant will deliver and file his submissions within 20 days of the date of this Interim Decision.

c. The respondents will deliver and file their responding submissions within 10 days of receiving the applicant’s submissions.

24The Tribunal may determine this issue on the basis of the written submissions. If oral submissions are required the parties may address them at the outset of the hearing.

25I am not seized.