HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nancy Falcone
Applicant
-and-
1458151 Ontario Ltd. o/a The Westbury and Nelson Ribeiro
Respondents
INTERIM DECISION
Adjudicator: Mark Hart
Date: October 4, 2011
Citation: 2011 HRTO 1798
Indexed as: Falcone v. The Westbury
1This is an Application made under s. 53(5) of the Ontario Human Rights Code (the “Code”), dated June 26, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on June 13, 2007.
2The hearing in this matter commenced on August 17, 2011 and is scheduled to continue on November 1 and 2, 2011.
3The purpose of this Interim Decision is to set out the preliminary ruling I made on the first day of hearing and to address the Request for an Order During Proceedings filed by the respondents, both of which relate to the scope of the allegations at issue in this proceeding.
Ruling on first day of hearing
4After hearing submissions from the parties on the first day of hearing, I made the following preliminary ruling:
The respondents have raised a preliminary objection to the applicant raising any allegation that she experienced discrimination because of her disability or a lack of accommodation arising out of her placement in the Nurse Manager position in or about April 2007, on the basis that no such allegation was raised by the applicant in her complaint as filed with the Commission.
Pursuant to s. 53(5) of the Code, this Application must be based upon the subject-matter of the complaint as filed with the Commission. See DeFreitas v. Ontario Public Services Employees Union, 2010 HRTO 281. The complaint in this matter was filed with the Commission in June 2007, and alleges that the applicant experienced discrimination because of disability and a lack of accommodation in relation to the Director of Care position. While passing reference is made in the complaint to the fact that the applicant was placed in the Nursing Manager position in April 2007, no allegation is raised in the complaint that the applicant experienced discrimination because of her disability or a lack of accommodation in relation to the Nurse Manager position. Nor do I understand that the applicant is asserting any such allegation today.
Accordingly, I grant the respondents’ Request and find that any allegation that the applicant experienced discrimination because of her disability or a lack of accommodation arising out of her placement in the Nurse Manager position in or about April 2007 is beyond the scope of the subject-matter of her complaint as filed with the Commission and no such allegation will be addressed by me in this proceeding.
All parties understand that I nonetheless may need to hear evidence as to what accommodations were provided to the applicant in the context of the Nurse Manager position, to the extent that any such evidence may be relevant to her allegation of discrimination or a lack of accommodation in relation to the Director of Care position.
The respondents’ Request for Order
5At the hearing during the applicant’s evidence in chief, counsel for the respondents made objection to a number of allegations raised by the applicant as extending beyond the scope of the subject matter of her complaint. I asked respondents’ counsel to reserve his objection until after I had heard all of the applicant’s evidence in chief, following which I established a schedule to receive written submissions from the parties regarding this issue.
6The respondents take no issue that the following allegations raised by the applicant in her evidence fall within the subject matter of her complaint: that the respondents are alleged to have discriminated against the applicant because of her disability in violation of the Code by terminating the applicant from her home position of Director of Care in December 2006; and that the respondents similarly are alleged to have violated the Code by failing to return the applicant to the Director of Care position at any point up to April 2007.
7The respondents, however, take issue with a number of other allegations raised by the applicant during the course of her evidence in chief. During her evidence, the applicant raised a number of allegations regarding the period of time from her return to work following her workplace accident in August 2005 and her departure on sick leave in March 2006. These included:
that while she was working reduced or modified hours, there were no additional supports or resources provided to her and she was expected to complete the full duties and responsibilities of the Director of Care position within less time;
that the performance evaluation conducted in February 2006 was discriminatory because she was assessed as if she was working full-time in the Director of Care position, when due to her injuries that wasn’t the case;
that she felt that she was being unfairly penalized because her limitations prevented her from performing the functions of a staff nurse; and
that she was being pressured to quit because she had a WSIB claim and was working modified hours and it was costing the respondents money, which she states is supported by a remark alleged to have been made to her by the personal respondent after her performance appraisal on February 28, 2006 to the effect that he could get rid of her if he wanted to.
8The respondents submit that none of these allegations are raised in the applicant’s complaint or in her statement of additional facts. I agree. The only paragraph in the applicant’s complaint dealing with the period from her return to work following her accident until her absence on sick leave in March 2006 states as follows: “Ms. Falcone worked modified hours after her accident up to late November 2005 at which time she resumed her regular hours in the Director of Care position. She continued to work until March 31, 2006. She went on sick leave from March 31, 2006 until September 7, 2006.”
9Nowhere in this paragraph or anywhere else in the complaint are specifics or particulars of the allegations now raised by the applicant at the hearing provided to the respondents. Having framed the issues in her complaint in the manner that she did, apparently with the assistance of legal counsel at the time, it would in my view be unfair to the respondents and beyond the scope of the subject matter of the complaint to permit the applicant to now raise new allegations that relate to an entirely different time period than the allegations raised on the face of the complaint. Accordingly, I find that the allegations raised by the applicant with regard to the period from her return to work following her accident until her absence on sick leave in March 2006 to be beyond the scope of the subject matter of her complaint.
10Having said that, I note that, while I have held that the allegations from this period are not within the subject matter of this proceeding in the sense that they will not form the basis of an independent determination as to whether the respondents violated the Code, I do not find that the applicant’s evidence regarding these prior events may not be relevant to the matters at issue before me. For example, I am aware that part of the applicant’s allegation regarding her termination from the Director of Care position in December 2006 relates to the respondents’ reliance upon her work performance as part of the reason for her termination, as set out in Ms. Hall’s letter dated May 25, 2007. In this regard, I may need to consider whether the February 2006 performance evaluation forms part of the performance issues relied upon and whether this performance evaluation was discriminatory, not in and of itself but as a factor involved in the December 2006 termination decision.
11The final allegation with which the respondents take issue is the applicant’s allegation that they violated her rights because sometime in early to mid October 2006, they failed to return her to the Director of Care position to see if she could perform the essential duties of this position and have these duties re-bundled. Once again, no allegation is raised by the applicant in her complaint or in her statement of additional facts regarding this period of time. Accordingly, I also find that this allegation is not within the subject matter of this proceeding. However, I note that the issues of not giving the applicant a trial period to determine if she could perform the essential duties of the Director of Care position prior to her termination from this position in December 2006 and/or of not considering whether these duties could be re-bundled may nonetheless be issues that I need to consider in determining whether the respondents violated the applicant’s rights under the Code arising out of the December 2006 decision.
12For all of these reasons, the respondents Request is granted.
Dated at Toronto, this 4th day of October, 2011.
”signed by”___________
Mark Hart
Vice-Chair