Raynor-Cowie v. Waterloo (Regional Municipality), 2010 HRTO 942

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mervis Raynor-Cowie

Applicant

-and-

Regional Municipality of Waterloo

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: April 29, 2010

Citation: 2010 HRTO 942

Indexed as: Raynor-Cowie v. Waterloo (Regional Municipality)

WRITTEN SUBMISSIONS

Mervis Raynor Cowie, Applicant ) On her own behalf

Regional Municipality of Waterloo, ) Donald Jarvis, Representative

Respondent )

1This Application was filed on April 6, 2009, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The Application contains allegations that the respondent discriminated against the applicant on the basis of disability in the context of employment. The applicant also alleges reprisals or threats of reprisal.

2More specifically, the applicant alleges that, in January 2006, the respondent told the Workers’ Safety Insurance Board (“WSIB”) that the applicant had injured herself at home, not in the workplace. The applicant alleges that, in speaking with WSIB, the respondent made reference to the applicant’s “retarded daughter”. As I understand the allegations contained in the Application, the applicant states that this comment was discriminatory on the basis of disability and that it constituted a reprisal or threat of reprisal.

3On October 15, 2009, the Tribunal issued a Notice of Intent to Dismiss because the Application appeared to have been filed more than one year after the alleged incident of discrimination. The Tribunal invited submissions from the applicant on the dismissal issue.

4The applicant filed submissions in response to the Notice. In these, submissions, she does not address the delay in filing an Application regarding the alleged comments made to WSIB. Instead, she makes new allegations and states that the respondent refused to allow her to return to work. As I understand it, the applicant suggests that this refusal constitutes ongoing discrimination.

5The applicant also states that she launched an internal investigation into allegedly unfair and discriminatory treatment regarding the refusal to allow her return to work. She states that, in October 2009, following an investigation, the respondent dismissed her complaint.

6In an earlier Interim Decision, 2009 HRTO 2163, the Tribunal invited submissions from the respondent, the Canadian Autoworkers Union, Local 1106 (“Union”) and the applicant on the following issues:

a. should the Application be dismissed as untimely?

b. should the Application be dismissed pursuant to s. 45.1 of the Code?

The Tribunal received submissions from the respondent and the applicant. The Union did not file submissions.

THE RESPONDENT’S POSITION

7The respondent submitted that the Application is not timely. It states that the applicant’s last attempt to return to work ended in April 2006, when the applicant provided a medical note indicating that she was unfit for work. The respondent argues that the applicant has been unfit for work since that date, based on “her objective medical documentation”.

8The respondent provided the Tribunal with a decision of the Workplace Safety and Insurance Appeal Tribunal (“WSIAT”). The sole issue before the WSIAT was whether the applicant was entitled to benefits based on her shoulder injury. The WSIAT concluded she was not.

9The respondent argues that it has not prevented the applicant’s return to work and that it remains prepared to facilitate a return “when objective medical documentation so permits”.

10The respondent agrees there was a meeting with the applicant in October 2009, but states it was unrelated to the allegations of discrimination contained in the Application.

11The respondent states that the Union filed a grievance on behalf of the applicant claiming a “duty to accommodate according to human rights for injured workers”. This grievance was denied by the respondent and the Union elected not to refer the matter to arbitration.

12The respondent objects to the applicant’s attempts to expand the scope of the Application in her subsequent submissions. It states that this expansion is an improper attempt to bring the allegations within the limitation period contained in the Code.

THE APPLICANT’S POSITION

13The applicant states that she has written to the respondent repeatedly regarding accommodation and a return to work, but has not received responses to her inquiries. She states that the internal review and the respondent’s October 2009 decision are directly related to her return to work concerns.

ANALYSIS

The scope of the Application

14The allegations in the Application relate only to the comment allegedly made to the WSIB regarding the applicant’s “retarded daughter”. In the submissions the applicant subsequently filed with the Tribunal, it is apparent that she is also concerned about the respondent’s alleged refusal to allow her to return to work.

15Because the allegations surrounding the return to work were not included in the Application, I need to determine how best to proceed and whether to consider these allegations in determining the preliminary dismissal issue.

16The Tribunal is mandated to determine matters in a fair, just and expeditious manner. To consider the dismissal issue only as it relates to the allegations contained in the Application would leave the applicant’s remaining allegations unaddressed. These further allegations could potentially be the subject of a further application and would likely raise similar preliminary concerns.

17In my view, in the circumstances, it is appropriate to consider the Application to include the applicant’s submissions to the Tribunal dated October 5, 2009 and January 8, 2010. In making this decision, I note that the Application is at a very early stage. The respondent has not filed a Response and, to date, only preliminary issues have been addressed in the submissions filed with the Tribunal. While the respondent objects to the expanded scope of the allegations, its submissions on the dismissal issue have addressed the additional allegations.

Has another proceeding adequately dealt with the substance of the Application?

18Section 45.1 of the Code states:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

19It is clear that the matter before the WSIAT constitutes a proceeding for the purposes of s. 45.1. In this case, the WSIAT’s decision dealt solely with the question of benefits for the applicant’s shoulder injury. This issue is not raised in the Application. Rather, the Application and the additional submissions relate to an allegedly discriminatory comment and to the respondent’s alleged failure to allow the applicant to return to work. As I am not satisfied that the WSIAT decision dealt with any of the allegations that form the subject of this Application, I will not dismiss the Application on this basis.

20In regards to the grievance, while it does appear to relate to the same issues as the Application, I do not accept that it “appropriately dealt with” the subject matter of the Application. The grievance was filed by the Union on behalf of the applicant. It was denied by the respondent and the Union decided not to refer the matter to arbitration. I cannot conclude that, in light of the effective withdrawal of the grievance by the Union, the grievance “appropriately dealt with “the subject matter of the Application for the purposes of section 45.1 of the Code.

TIMELINESS

21Based on the materials filed with the Tribunal, I am unable to determine whether the Application was filed within one year of the last alleged incident of discrimination.

22The applicant appears to allege ongoing discrimination, including during a meeting held in October 2009. Although this is somewhat unclear, the applicant may also be alleging that the respondent’s failure to respond to her inquiries about a possible return to work is part of the alleged ongoing discrimination.

23The respondent denies any discrimination and, in any event, states that the October 2009 meeting is unrelated to the allegations made to the Tribunal. The respondent has not commented on the applicant’s allegations that her return to work inquiries went unanswered. I understand from the respondent’s submissions, however, that there may be an issue as to the sufficiency of medical documentation supporting a return to work.

24The purpose of the October 2009 meeting is, in my view, a key factor in determining the timeliness issue. There is a factual dispute about the purpose of this meeting which I cannot resolve at this stage of the proceedings, based on the material filed with the Tribunal.

25In my view, the object of the October 2009 meeting as well as the alleged ongoing refusal to allow the applicant to return to work or respond to her inquiries are factual determinations that will be considered in determining both the merits of the Application and the timeliness issue.

26Accordingly, while there is a serious issue as to the timeliness of the Application, I find that this issue is best addressed at the hearing of this matter.

27Within twenty days of its receipt of this Interim Decision, the Respondent will file a FULL Response. The Response should address the allegations contained in the Application as well as those contained in the applicant’s submissions of October 5, 2009 and January 8, 2010.

28I am not seized of this matter.