Lamothe v. Mr. Foundation, 2011 HRTO 502

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tamara Lamothe

Applicant

-and-

Mr. Foundation Inc. and Patrick LeCours

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend Date: March 11, 2011 Citation: 2011 HRTO 502 Indexed as: Lamothe v. Mr. Foundation

APPEARANCES

Tamara Lamothe, Applicant ) Self-represented Mr. Foundation Inc. and ) Ian McBride, Counsel Patrick LeCours, Respondents )

1The applicant filed this Application on July 27, 2010, alleging discrimination in employment on the basis of disability and reprisal, contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the Code). In their Response, the respondents asked the Tribunal to dismiss this Application on the basis that two other proceedings had appropriately dealt with the substance of the Application.

2The Tribunal issued a Case Assessment Direction, indicating that the Tribunal would deal with the respondents’ Request via a teleconference hearing. The parties were also advised that the Tribunal wished to receive oral submissions on the issue of whether the Tribunal had jurisdiction over the applicant’s allegations concerning her treatment prior to her medical leave of absence. The applicant was advised that the Tribunal would be seeking clarification of her pre-leave allegations in her oral submissions. The hearing was held on March 7, 2011.

3The applicant was employed by the respondent company from August 2005 to May 2010. She was off on a medical leave of absence for the period from January 26, 2010 to May 12, 2010. The applicant filed a WSIB claim for traumatic mental stress arising from her working conditions. It is not clear when this was filed, but a decision was rendered on May 3, 2010, during the applicant’s leave of absence.

4Upon her return to work, the applicant alleges that the environment was intolerable and she was unable to continue working. She left mid-way through her second day back, obtained a note from her doctor saying she was unable to return to work due to stress, and quit her job. Following this, she filed a claim with the Ministry of Labour for, among other things, wrongful termination.

Jurisdiction over the Pre-Leave Allegations

5The Application contains a number of allegations concerning the respondents’ treatment of her that the applicant states led to her medical leave of absence. These allegations include the following:

• The personal respondent was frequently verbally abusive to her for perceived work errors;
• The personal respondent made her repeatedly lie to a customer about an estimate;
• The personal respondent had the applicant do a number of personal tasks for her, including setting up medical/dental appointments and babysitting;
• She was made to work long hours for which she did not receive overtime;
• She was not allowed to take vacation; and
• On her final day before her leave, she was not allowed to take the day off to attend her brother-in-law’s funeral, but was only given enough time off to attend the actual funeral.

6During the course of her oral submissions, the applicant was asked to explain how these allegations were violations of the Code. She stated that she was told by the Employment Standards Officer, that under the Employment Standards Act, 2000, S.O. 2000, c. 41 as amended, (the “ESA”), she was only entitled to claim one year of overtime, but that for the remaining years, she could make a claim to this Tribunal.

7However, as was explained to her, this Tribunal can only deal with allegations if they relate to the Code. The applicant was unable to link the respondents’ failure to pay her overtime to any ground under the Code. Likewise, she was not able to link the demands to work long hours and undertake personal tasks for the personal respondent and his wife to a ground under the Code. Similarly, the respondents’ alleged refusal to allow her to take vacation is not linked to the Code.

8With respect to the verbally abusive conduct, the applicant indicated that the personal respondent was also verbally abusive to other staff and sometimes to customers, and that she attributed his remarks to the fact that he readily “flew off the handle.” Again, this is not linked to a ground under the Code.

9Finally, with respect to the failure to allow her to take time off work to attend her brother-in-law’s funeral, the applicant suggested that this could be linked to the ground of family status. I explained to her that ground is defined as “the status of being in a parent/child relationship” and did not extend to other members of a person’s immediate family. The deceased was the applicant’s sister’s husband.

10For the purposes of this hearing, the applicant was able to recall two incidents while she was still employed, which she states were discriminatory. The first concerns the request in what she believes was December 2008 to have her husband not come to the annual Christmas party because he had complained about the abusive manner in which the applicant was being treated.

11This allegation took place some 19 months before the applicant filed her Application. The applicant was asked to address the issue of whether the delay in raising this allegation was in good faith. She said, she had spoken to either the Ontario Human Rights Commission or the Ministry of Labour during this period, but decided not to pursue these allegations. Accordingly, the delay cannot be said to have been incurred in good faith.

12In addition, the applicant said that in the summers of 2008 and 2009 (or possibly 2007 and 2008), the personal respondent refused to allow her to go water skiing and water tubing on the annual barbeque because he said that he could not afford to have her away from the office if she got injured. The second year, she said, she was able to persuade him to let her go tubing at the end of the day, but she was only allowed to do so on the condition that the driver drove the boat slowly.

13It is difficult to see how this relates to a ground under the Code. The applicant suggested that the refusal might have stemmed from the fact that she was a woman (all other employees were, at the time, men), but other than suggesting it, she could offer nothing in support of this hypothesis. It would appear that the applicant has no reasonable prospect of success in proving this allegation. She has, through her other allegations, offered support for the personal respondent’s explanation that she was too invaluable to the operation of the respondents to risk having her injured.

14In summary, the allegations listed in the Application and/or raised in oral submissions concerning the period leading up to the applicant’s leave of absence in January 2010 do not appear to be within the jurisdiction of this Tribunal. Accordingly, the allegations concerning this period are dismissed.

Section 45.1

15Section 45.1 of the Code states:

45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

16The respondents argue that there are two proceedings that have appropriately dealt the substance of the Application. The first of these proceedings resulted in a decision of the Workers Safety and Insurance Board (“WSIB”), denying the applicant’s claim for loss of earnings for a “psychotraumatic” disability.

17Given that the claim made to the WSIB concerns conduct that occurred prior to the applicant’s leave, it is not necessary to address whether the WSIB appropriately dealt with the substance of those allegations. That is, because these allegations have been dismissed as being outside the jurisdiction of the Tribunal, it is immaterial whether another proceeding dealt with them or not.

18The second of these proceedings resulted in a decision of the Employment Standards Officer that the applicant was entitled to overtime (for the one year), but was not entitled to termination pay. For the reasons discussed above, the question of the applicant’s entitlement to overtime is not a matter within the Tribunal’s jurisdiction and so it is not necessary to determine whether this allegation was appropriately dealt with by this proceeding.

19In deciding that the applicant was not entitled to termination pay the Employment Standards Officer made the following findings: (1) the applicant had not been constructively dismissed; and (2) the applicant was not reprised against for taking a personal emergency leave because she was not entitled to such a leave.

20The difficulty with relying on the Employment Standards Officer’s second finding is that it was based on the interpretation of the ESA that the applicant was not entitled to take a personal emergency leave. This may be true under the ESA, but under the Code, the applicant would be theoretically entitled to take a leave of absence for a valid disability related reason, assuming that to do so would not cause undue hardship to the respondents.

21The applicant alleges that the respondents were very angry with her for taking this period of time off work. She also alleges that they were angry with her for filing the claim to the WSIB, and insisted on her first day back that she retract her allegations to her WSIB Claims Manager. This issue is similarly not addressed by the Employment Standards Officer.

22At this point, having heard no evidence from the parties, it would be premature to determine whether these allegations would be upheld at a hearing. However, on their face, they appear to raise issues within the jurisdiction of the Tribunal, which have not been addressed by the Employment Standards Officer.

23The Employment Standards Officer made a factual finding that the applicant prematurely concluded that her job duties had been taken from her when she returned to work in May 2010, but did not make findings about the animosity the applicant alleged she faced upon her return. In the absence of full findings with respect to this period, it would not be appropriate to exercise my discretion to dismiss the portion of the Application in which the applicant alleges her job duties were, in effect, taken from her because she filed a claim with the WSIB and/or taken a medical leave of absence from work.

24Accordingly, the respondents’ Request to have the allegations concerning the applicant’s return to work dismissed is refused. The Application in respect of these allegations will proceed.

25I am not seized of this matter.