Cohen v. Manufacturer’s Life Insurance Company, 2011 HRTO 272

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Susan Cohen

Applicant

-and-

The Manufacturer’s Life Insurance Company

Respondent

DECISION

Adjudicator: Michelle Flaherty

Date: February 8, 2011

Citation: 2011 HRTO 272

Indexed as: Cohen v. Manufacturer’s Life Insurance Company

APPEARANCES

Susan Cohen, Applicant ) Self-represented

The Manufacturer’s Life Insurance )

Company, Respondent ) Sophia Zaidi, Counsel

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging that the respondent discriminated against her on the basis of disability contrary to s. 1 of the Code. The respondent denies the allegations.

2In a Case Assessment Direction dated November 10, 2010, the Tribunal directed that the matter be dealt with by way of a summary hearing, pursuant to Rule 19A of the Tribunal’s Rules of Procedure.

3A summary hearing was conducted by telephone on February 7, 2011. I heard submissions from the applicant and from counsel for the respondent.

4For the reasons that follow, the Application is dismissed. I find that the Application has no reasonable prospect of success.

THE FACTS

5At the material times, the applicant was employed by Canwest Digital Media (“Canwest”).

6Canwest has a Short-Term Disability Plan (“Plan”), under which employees (including the applicant) are eligible for short-term disability (“STD”) benefits if they are totally unable to complete the essential duties of their job due to an illness or accident.

7Canwest is responsible for paying any STD or other benefits under the Plan; the respondent’s role is to assist in administering the Plan.

8Pursuant to an agreement between Canwest and the respondent, the respondent provides claims management services to Canwest, including absence assessment and recommendations, case management, and treatment and return to work facilitation for STD-related claims.

9In this case, the respondent made recommendations to Canwest regarding the applicant’s eligibility for STD benefits under the Plan. Those benefits, where payable, were paid to the applicant by Canwest.

10The applicant was diagnosed with major depression and, because of this condition, was absent from work beginning on May 7, 2010. She states that issues within the workplace contributed to her depression.

11The respondent was advised of the applicant’s ongoing absence on May 17, 2011. It then initiated a series of communications with the applicant and the applicant’s physician.

12The respondent recommended that the applicant receive STD benefits from May 7 to June 21, 2010. Based on the applicant’s physician’s prognosis that the applicant’s condition was improving, the respondent recommended a “work facilitation meeting” during the week of June 21, 2010. The respondent explained that as workplace stress appeared to be contributing to the applicant’s condition, this meeting was an effort to resolve issues causing stress to the applicant, which is a necessary part of a return to work plan in circumstances such as these.

13On June 29, 2010, the respondent recommended that Canwest implement a gradual return to work plan. It further recommended that an absence beyond June 20, 2010 was “not medically supported.”

14The applicant appealed the recommendation not to provide benefits beyond June 20, 2010. The applicant’s appeal was ultimately successful and she received STD benefits until August 15, 2010.

15In the course of the appeal, the medical information submitted by or on behalf of the applicant was reviewed by Dr. Hines, one of the respondent’s medical consultants. In addition, on July 23, 2010, Dr. Hines communicated with the applicant’s treating physician, Dr. Heath. According to the respondent:

Dr. Heath advised Dr. Hines that Ms. Cohen was responding well to the medication she was taking and was planning to increase the medication the following week. If the increase was tolerated Dr. Heath indicated that a return to work meeting and plan could take place, otherwise Dr. Heath would refer Ms. Cohen to a psychiatrist.

16The applicant was not involved in this conversation. She stated that she has no basis to confirm or dispute its contents, as described by the respondent. She states that Dr. Heath did not refer her to a psychiatrist. However, the applicant herself initiated consultation with a psychologist through a workplace employee assistance program.

17The respondent states that its intention was to monitor the applicant’s response to treatment in the two to four weeks following the July 23, 2010 conversation with the applicant’s physician. If the applicant responded well to the treatment mentioned by her physician, the respondent intended to assist her with a gradual return to work plan and a work facilitation meeting. If she did not respond well to the treatment, it intended to arrange another meeting between the applicant’s physician and the respondent’s medical consultant.

18The applicant acknowledges that she did not return the respondent’s calls or communications after August 15, 2010. She felt that she and her physician had provided all of the information available to them, she felt the respondent’s attempts to communicate with her and her physician were harassing, and she believed that she would be cut off from benefits in any event.

19The respondent stated that the applicant has an obligation to communicate with it in regards to her benefit claim. It denies any breach of the Code and argues that the recommendation to terminate benefits as of August 15, 2010 was reasonable and based on the applicant’s failure to communicate with the respondent or provide any medical documentation substantiating an inability to work after August 15, 2010.

20The respondent further argues that the Tribunal has no jurisdiction to make a finding of discrimination against it in the circumstances because the respondent does not provide services to the applicant within the meaning of s. 1 of the Code.

ANALYSIS

21In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following observations regarding summary hearings:

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

22In this case, the principle issue before me is whether there is a reasonable prospect of linking the allegations contained in the Application to a social area or prohibited ground contained in the Code.

23In the Case Assessment Direction, the Tribunal provided direction regarding the conduct of the summary hearing in this case. At paragraph 3, the Tribunal wrote:

The Tribunal does not have the power to deal with all claims of unfairness or all disputes between parties relating to disability benefits. It can only deal with applications alleging a violation of the Code, which prohibits discrimination and harassment on specific grounds. The Tribunal has no power to determine whether the respondent properly administered the short term disability plan, only whether there was discrimination in doing so. To succeed in this Application, the applicant must establish that the respondent treated her differently as compared with others based on her disability and that such treatment caused her disadvantage, resulting in discrimination within the meaning of the Code. There appears to be no allegation or evidence that the respondent’s treatment of her was related to her disability, as opposed to [the] nature of the medical documentation submitted.

24At the summary hearing, the applicant alleged that Canwest stated that depression does not qualify for STD benefits. I explained to the applicant (and she acknowledged) that Canwest is not a party to this Application and that, as a result, the Tribunal has no ability to determine whether Canwest’s alleged statement violates the Code.

25Although the applicant seems to be alleging that Canwest treated depression differently from other disabilities, it is not clear to me that she is alleging that the respondent made any such distinction.

26In any event, there is no basis to conclude that the respondent treated her disability any differently. The respondent recommended that STD benefits be paid to the applicant for the period immediately following her absence from work, from May 7 to June 21, 2010. There is no basis to conclude that the respondent expressed or recommended that depression was not a valid ground for an STD claim. Moreover, as counsel for the respondent noted, eligibility for the Plan is based on ability to work, not on the nature of the disability.

27The applicant argued that the respondent’s numerous attempts to contact her and the pressure it applied for further information constitutes harassment and impeded her recovery.

28While I appreciate that communicating with the respondent may have been difficult for the applicant, it was reasonable for the respondent to monitor the applicant’s response to treatment. Based on its communications with the applicant’s treating physician in late July, the respondent understood that the applicant might be in a position to return to work in mid-August. It was reasonable for it to communicate with the applicant to monitor her response to treatment and to determine if she could begin a gradual return to work.

29Although the applicant says she felt pressured by these attempts to communicate with her, I cannot conclude that they were discriminatory or harassing within the meaning of the Code. In particular, there is no suggestion that the respondent made any disparaging remarks or did anything but seek additional information. While it may have made repeated attempts to do so, this does not, in the circumstances, constitute a violation of the Code.

30In my view, there is no reasonable prospect that the applicant could establish discrimination under the Code. There is no reasonable prospect of establishing that the respondent’s treatment of the applicant was discriminatory or based on her disability, as opposed to her failure to communicate and the nature of the medical information submitted. The Application is dismissed on this basis.

31In light of this conclusion, it is not necessary for me to address the respondent’s arguments regarding whether it provided a service to the applicant within the meaning of the Code.