HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Linda Oldenhof Applicant
-and-
TS Environmental Services – subsidiary of TS Health & Safety Consultants Inc. Respondent
INTERIM DECISION
Adjudicator: Ena Chadha Date: October 4, 2011 Citation: 2011 HRTO 1793 Indexed as: Oldenhof v. TS Environmental Services
1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) on June 30, 2011, alleging discrimination with respect to employment on the basis of record of offences.
2The applicant’s narrative indicates that she was dismissed from her employment in July 2010 while on disability leave as a result of a motor vehicle accident. The applicant alleges that she advised her place of employment that she would attempt a gradual return to work based on her doctor’s approval and thereafter she was informed that her employment was being terminated because of an incident that had occurred the previous year.
3By correspondence dated August 18, 2011, the Tribunal issued a Notice of Intent to Dismiss. The applicant was advised that the Application does not appear to raise an issue that the Tribunal has the jurisdiction to resolve. Although the Application alleges discrimination on the basis of “record of offences”, the Application fails to describe how the respondent’s alleged conduct was related to discrimination on the basis of a conviction for an offence within the meaning of “record of offences” as defined in the Code. The Tribunal directed the applicant to file submissions in regards to the issue of jurisdiction.
4On September 16, 2011, the applicant filed submissions noting that she seeks to amend her previous complaint submission. The applicant indicated that she believes that she was wrongfully dismissed while she was disabled and under physician’s care. The applicant submits that disability is a Code-protect ground and, therefore, her Application should not be dismissed.
ANALYSIS
5There are no facts alleged in the Application to support the allegation that the applicant has a “record of offences” within the meaning of the Code. Consequently, it appears that the Tribunal does not have jurisdiction to deal with this aspect of the Application.
6Disability is defined in section 10 of the Code:
“disability” means,
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(d) a mental disorder, or
(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997;
7Under section 10(3), the right to equal treatment without discrimination because of disability includes “…the right to equal treatment without discrimination because a person has or has had a disability or is believed to have or to have had a disability.”
8Without deciding whether the nature of the applicant’s circumstances falls within the definition of disability, I find that the applicant’s allegations with respect to dismissal on the basis of being absent on a disability leave may raise matters which the Tribunal has the power to decide.
9I am satisfied that it is plain and obvious from the face of the Application that the applicant’s allegations pertain to the ground of “disability” and are not related to the ground of “record of offences”. Accordingly, the applicant’s amendment of the Application is accepted and the Application will proceed only with respect to the ground of “disability”.
ORDER
10For the reasons stated above, the Application is amended to delete “record of offences” and cite the ground of “disability”. The Registrar is directed to deliver the Application, the Notice of Intent to Dismiss, the applicant’s two-page correspondence dated September 16, 2011 and this Interim Decision to the respondent. The respondent is directed to file a full Response to the Application.
11I am not seized.
Dated at Toronto, this 4th day of October, 2011.
"signed by"___________
Ena Chadha Vice-chair