Ruffolo v. Focus Assessments Inc., 2011 HRTO 1820

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Achille John Ruffolo

Applicant

-and-

Focus Assessments Inc. and Jonathan Siegel

Respondents

DECISION

Adjudicator: Sherry Liang

Date: October 6, 2011

Citation: 2011 HRTO 1820

Indexed as: Ruffolo v. Focus Assessments Inc.

APPEARANCES

Achille John Ruffolo, Applicant ) Self-represented

Focus Assessments Inc. and ) Donald G. Kidd, Counsel

Jonathan Siegel, Respondents )

BACKGROUND

1This is an Application filed on July 8, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). I held a summary hearing in the matter on April 26, 2011. For the reasons below, I find that the Application has no reasonable prospect of success and it is dismissed.

2The applicant states he was involved in a motor vehicle accident on September 29, 2009. On July 8, 2010, he attended at the office of Focus Assessments Inc. (Focus) for an independent psychological assessment requested of him by his insurer, Belair Direct (Belair).

3Upon arriving at the office of Focus, the applicant was given two forms to complete as a pre-condition of the assessment to be performed by the personal respondent, Jonathan Siegel (Dr. Siegel). The forms were a “Consent to the Use of Personal Information” and a “Consent for Examination and Release of Information”. In the narrative to the Application, the applicant states that he told the receptionist he could not sign those authorizations until he saw the report, and that Focus should contact Belair Direct about that. He states that Dr. Siegel advised him that the authorizations must be signed, without which the assessment would not be conducted and he would lose his benefit.

4The applicant states that he told Dr. Siegel that he had memory problems and asked him as an accommodation of his disability to allow him to sign the authorization once he had a chance to review the report “to ensure that I had not forgotten any important information that might put my benefits at risk.” He states that Dr. Siegel stated that he could not proceed without the signed authorizations and asked him to leave.

5The respondents provided copies with their Response of the authorizations at issue. The respondents agree with some of the facts asserted by the applicant. They deny that at any time the applicant was told he would lose his benefits or that the applicant was asked to leave. They state that they made an effort to reach the applicant’s insurance adjuster at Belair, without success. They state that the applicant simply left the office, stating that he would be emailing his insurer to advise it of his position.

6During the conference call hearing, the applicant submitted that he has a memory disability. He stated that he wished to be able to review the report before it was submitted so as to ensure that he had not forgotten anything important. He states that the respondents discriminated against him when they refused to accommodate his memory disability in the manner requested. Because of his disability, he required an accommodation, instead of being treated the same as everyone else coming to the office to be assessed. Not only that, but they ignored his request, which is a breach of the duty to accommodate.

7The respondents submitted that the applicant is conflating the requirement to sign the authorizations with his alleged need for accommodation. There was nothing discriminatory about requiring the applicant to sign the authorizations before proceeding with the assessment. The signing of the authorizations is a separate issue from the question of whether the applicant could ask to review the report before it was sent to Belair. The applicant’s refusal to sign the authorizations meant the assessment process could not even begin.

8Further, the respondents submitted that the applicant’s position is based on a misunderstanding of the role of the assessor. The applicant was not attending at their offices in order to receive services. He was there at the request of his insurer. The respondents were conducting the assessment at the request of his insurer. Belair is the party with the interest in obtaining the report and if the applicant wished to be allowed to review and edit the report before it went to Belair, he should have discussed that with Belair.

9Further, the respondents submit, if the applicant believed he required accommodation for a memory disability, he could have come to the assessment with a friend or advisor. He could have discussed the matter with Belair or returned to discuss it further with Focus.

DECISION

10In Dabic v. Windsor Police Service, 2010 HRTO 1994 (‘Dabic”), at paras. 8 and 9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

11Although the parties did not refer to the specific provisions of the Code, it appears that the applicant’s theory of discrimination is based on section 11 (constructive discrimination). He alleges that the requirement to sign the authorizations as a pre-condition of undergoing the assessment, which is normally a neutral requirement, discriminated against him because it denied him the right to have an assessment which took account of his memory disability.

12I find that, even assuming the allegations made by the applicant to be true, they could not reasonably amount to a violation of the Code.

13I agree with the respondent that there was nothing discriminatory about the requirement that the applicant sign the two consent forms before proceeding with the assessment. On their face, they do not address whether or not the applicant would or would not be permitted to review the report of the assessor before it was sent to Belair. One form is consent to the use and disclosure of the applicant’s personal information. The other form is consent to the assessment and accompanying collection of information from other sources if necessary and then to share the information with the insurer. Signing the forms as a pre-condition of proceeding with the assessment did not preclude the applicant from having discussions with the assessor, and with Belair, about any accommodations he believed he required.

14Indeed, there was no reason, given that the assessment was initiated at the request of and for the benefit of Belair, that the applicant could not have explored his request for accommodation with Belair before arriving at the assessment.

15The Tribunal has stated that the duty to accommodate is not a “free-standing” obligation under the Code. It arises only pursuant to sections 11 where an individual is disadvantaged by the application of a neutral requirement, because of a personal characteristic covered by a prohibited ground of discrimination under the Code. In order to find that the respondent had a duty to accommodate the applicant under section 11, therefore, the applicant would have to convince the Tribunal that the requirement to sign the two authorization forms was a neutral requirement that had an adverse effect on him, because of his disability.

16I note that the respondent has questioned whether the applicant indeed has the disability he claims to have. But leaving that aside, I am not convinced, for the reasons given above, that the requirement had an adverse effect on him because of his disability.

17I find the Application has no reasonable prospect of success and it is accordingly dismissed.