Woods v. BMO Nesbitt Burns, 2011 HRTO 1396

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gary Woods

Applicant

-and-

BMO Nesbitt Burns

Respondent

INTERIM decision

Adjudicator: Brian Cook

Date: July 26, 2011

Citation: 2011 HRTO 1396

Indexed as: Woods v. BMO Nesbitt Burns

APPEARANCES BY / wRITTEN SUBMISSIONS

Gary Woods, Applicant ) Self-represented

BMO Nesbitt Burns and Shields ) Meighan Ferris-Miles, Counsel O’Donnell MacKillop LLP, Respondents )

Introduction

1The applicant filed this Application on November 4, 2010, alleging discrimination in the provision of goods, services or facilities on the basis of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant was employed by the Respondent BMO Nesbitt Burns (“BMO”) as a Senior Options Trader and last worked in 1999 or 2000 when he went on a medical leave of absence and received long term disability benefits from the Manufacturers Life Insurance Company (“Manulife”), his employer’s disability insurer. He received benefits, with some interruptions, until 2007, when the insurer determined that he was no longer entitled to benefits.

3In March 2010, the applicant filed an Application in Tribunal file No. 2010-05273-I. It named Manulife and BMO as respondents. The applicant subsequently withdrew that Application. The law firm Shields O’Donnell MacKillop LLP was retained as counsel by the respondent BMO in respect of that Application. The current Application names the law firm as a respondent in addition to BMO.

4After reviewing the current Application, the Tribunal issued a Notice of Intent to Dismiss, dated January 31, 2011. The Notice asked the applicant to address three issues:

• The Application was filed more than one year after the last incident of discrimination described in your Application and you have not fully explained how the delay was incurred in good faith and why you believe no substantial prejudice will result to any person affected by the delay;

• A review of the Application and the narrative setting out the incidents of alleged discrimination fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondents;

• One of the respondents appears to be the lawyer for another party in another proceeding. The HRTO has stated that the relationship between a lawyer and an opposing party is not covered by the Code.

5The applicant filed submissions in response to the Notice of Intent to Dismiss. These were reviewed by a Vice-chair of the Tribunal who issued a Case Assessment Direction dated March 22, 2011. The Vice-chair found that the applicant’s submissions had not sufficiently clarified matters and directed in the particular circumstances of this case that the applicant have an opportunity to clarify the nature and timing of his allegations and obtain further submissions on the issues set out in the Notice of Intent to Dismiss in a half-day telephone conference call .

6The telephone conference call was scheduled for June 20, 201,1 at 9:30 in the morning. The respondents participated and were represented by Ms. Ferris-Miles. The applicant did not participate. However, in the interim, he submitted several emails.

7On June 19, 2011, the day before the conference call, the applicant sent an email to the Tribunal advising that he might not be able to participate in the conference call the following day.

8In the June 19, 2011 email, and also in earlier emails sent by the applicant, he indicated that he has experienced a number of medical problems, including significant mental health issues. He indicated that he has experienced problems accessing medication because of financial difficulties. He indicates that he no longer has a telephone and that it might be difficult for him to participate in a telephone conference call as a result. He further suggested that he might not be physically or mentally capable of participating in the conference call. He advised that he wanted the Tribunal to make its decision on the basis of the documents on file.

9During the conference call, the respondents said they also felt that the matter should be determined on the basis of the documents on file.

Issues

10The Tribunal may dismiss an Application without providing an opportunity for an oral hearing because the Tribunal does not have jurisdiction to deal with the Application. However, the Tribunal has said that it will only do so if it plain and obvious that the Tribunal does not have jurisdiction to deal with the Application: (Masood v. Bruce Power, 2008 HRTO 381; Bisbee v. Hudson’s Bay Trading Company, 2009 HRTO 1284; Morin c. Alliance de la function publique du Canada, 2008 HRTO 58; Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

11In this case, an oral hearing was scheduled by telephone conference call. However, the purpose of that hearing was to seek clarification and address the issues in the Notice of Intent to Dismiss. The purpose of the hearing was not to address the merits of the Application. Accordingly, at this point, the issue is whether the Application should be dismissed in whole or in part because it is plain and obvious that the Tribunal does not have jurisdiction over all or part of the Application.

Background

12The applicant started his employment with the respondent in 1985. He stopped work in 2000 and received long term disability benefits from Manulife, the respondent’s disability insurer.

13In 2001, there was some discussion about a return to work and the applicant came briefly to the workplace on a few occasions. However, he was unable to return to work and remained in receipt of long term disability benefits.

14In 2005, there were further discussions about a return to work. However, after a brief period, Manulife determined that the applicant was in fact entitled to continuing long term disability benefits.

15In August 2007, Manulife determined that, based on the information provided by the applicant, the applicant was no longer eligible for long term disability benefits. Manulife subsequently granted benefits for the period from October 1 to December 31, 2007.

16According to the respondent, the applicant did not appeal Manulife’s decisions about his entitlement to benefits.

17In January 2009, there was further contact between the applicant and BMO. BMO advised the applicant that medical documentation would be required if he wished to return to work. There was further discussion in November 2009. The applicant alleges that he experienced discrimination at that time, although the basis for this is not entirely clear from the information he has provided.

18There may be some confusion regarding the applicant’s current status with BMO. The applicant believes that his employment was terminated, although he also indicates that he felt forced to resign in 2009 or 2010. BMO has indicated that the applicant is still an employee and that he has been on an unpaid leave of absence since January 2008.

Delay

19Section 34 states, in part:

(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.

(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.

20In this case, the Application was filed in November 2010. The narrative in the Application mentions contact between the applicant and BMO in November 2009. It appears that the applicant alleges that there was contact at that time that included discussion about a possible return to work and issues of accommodation. In my view, it is not plain and obvious that the Application was filed more than one year after the last alleged incident of discrimination.

21If there is a delay in filing an Application and the delay is due to a Code-protected ground, including disability, the Tribunal may accept that the delay has been incurred in good faith. At this point, I am not making any finding about whether the delay was or was not incurred in good faith and this is not a final decision on the delay issue. However, on the basis of the materials before me, I cannot conclude that it is plain and obvious that there was a delay.

Has the applicant identified specific acts of discrimination within the meaning of the Code allegedly committed by the respondents?

22The second issue raised in the Notice of Intent to Dismiss was whether the applicant had identified specific acts of discrimination within the meaning of the Code.

23As noted in earlier Case Assessment Direction, the nature of the discrimination the applicant alleges is not completely clear. However, it does appear that, among other things, the applicant alleges that the respondent BMO did not fulfill its duty to accommodate the applicant’s disability and that the alleged failure to accommodate was contrary to the Code.

24At this point, I am not considering whether the applicant will be able to prove the allegations. The question raised in the Notice of Intent to Dismiss was whether the applicant had identified any acts of alleged discrimination within the meaning of the Code. In my view, it is not possible at this point to conclude that it is plain and obvious that the applicant has not identified any acts of alleged discrimination within the meaning of the Code.

The application against the law firm

25It is plain and obvious that the Application has been brought against the law firm Shields O’Donnell MacKillop LLP solely because of the firm’s involvement as counsel for the respondents in respect of the first Application filed by the applicant, which was withdrawn.

26The Application does not make any specific allegations concerning the law firm but only notes that the law firm filed the Response in respect of the first Application.

27Under section 1 of the Code, every person has a right to equal treatment with respect to services, without discrimination.

28As discussed in Cooper v. Pinofskys, 2008 HRTO 390, a lawyer acting for one party in a legal proceeding is not providing a “service” for the purposes of the Code to the other party in the proceeding. In this case, the law firm was providing a service to its clients when it filed the Response to the first Application. It did not provide a service to the applicant.

29In these circumstances, I am satisfied that the Tribunal does not have jurisdiction to deal with the Application as against the law firm and the Application is dismissed as against the law firm.

Order

30It is not plain and obvious that the Application should be dismissed on the grounds of delay. It is also not plain and obvious that the applicant has failed to identify acts of discrimination within the meaning of the Code allegedly committed by the respondent BMO.

31The Tribunal will continue to process the Application as against the respondent BMO. This means that the respondent BMO should file a Response to the Application within 35 days of the date of this Interim Decision.

32The Application is dismissed as against the respondent Shields O’Donnell MacKillop LLP and the style of cause amended to reflect the dismissal.

33I am not seized of this matter.