HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mona Fray on behalf of Leemore Fray
Applicant
-and-
Wal-Mart Canada Corp.
Respondent
INTERIM DECISION
Adjudicator: Brian Cook
Decision Date: May 18, 2012
Indexed as: Fray v. Wal-Mart Canada Corp.
APPEARANCES
Mona Fray on behalf of Leemore Fray, Applicant
Self-represented
Wal-Mart Canada Corp., Respondent
Christopher McClelland, Counsel
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability.
2In a Case Assessment Direction dated February 24, 2012, I directed that a preliminary/summary hearing by telephone conference call be scheduled to clarify the following issues:
a. Whether the Application as it relates to events prior to May 2010 (one year before the Application was filed) should be dismissed because of delay;
b. Clarification about what are the allegations of discrimination or harassment and what period of time they relate to; and,
c. Whether there is no reasonable prospect that the Application will succeed in whole or in part.
3The conference call hearing was held on May 14, 2012. Mr. Fray, the applicant/complainant, participated. His sister, Mona Fray, who filed the Application on Mr. Fray’s behalf, also participated. Mr. McClellan, the respondent’s counsel, was present on behalf of the respondent.
BACKGROUND
4The applicant was employed as an Associate by the respondent and started this employment in March 2008. He was originally employed as a part-time Associate and became a full-time Associate in August 2008.
5The applicant had a bilateral ingrown toenail affecting the nail of both big toes. Both toes required surgery to remove the nail. He had surgery on his left toe in October 2008. The right toe surgery was in December 2009. According to the respondent, the applicant had temporary medical restrictions after both surgeries that included no prolonged standing or walking for about four weeks after each operation, and these restrictions were accommodated.
6The applicant alleges that in addition to the temporary restrictions regarding walking and standing, there was a continuing issue regarding his inability to wear steel-toed shoes at work because of the toe disabilities. The applicant alleges that this issue was not appropriately accommodated. He alleges that because he could not wear safety shoes, he lost his full-time position and was instead given only part-time work. This occurred in October 2009.
7The respondent agrees that the applicant’s job position was changed from full-time to part-time in October 2009 but denies that this was related to a disability. The respondent asserts that the change was related to discipline for lateness. The applicant agrees that he was late for work from time to time but alleges that this happened because of his disability.
8On or about August 1, 2010, the applicant reported that he had suffered a work-related left arm injury. The injury was reported to the WSIB. During the conference call, the applicant indicated that his job was modified to some extent after the arm injury but that he still had problems performing the modified work. He indicated that he was able to continue working although he may have lost a few hours of work.
9On or about September 17, 2010, the applicant stopped working and he has not returned to work since. During the conference call he indicate that he developed a flu condition and experienced an adverse reaction to a medication he was prescribed. He subsequently was incapacitated by mental health issues which have not yet resolved to the point where he can contemplate a return to work.
10On or about August 13, 2010, between the time of the work-related arm injury and September 17, 2010, when the applicant went off work, he was disciplined regarding attendance issues. The applicant alleges that to the extent there were discipline issues, they were related to his arm injury and/or continuing issues related to his toe condition.
11The Application was filed with the Tribunal on May 17, 2011.
WAS THE APPLICATION FILED IN TIME?
12Section 34 of the Code provides as follows:
- (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
13Under subsection 34(1), the issue is whether the Application was filed within one year of the incident to which the Application relates, or within one year of the last incident if there was a series of events.
14The applicant submits that there was a series of events going back to October 2008, when he had the first toe surgery and continuing until at least August 2010 when he was disciplined for issues that he alleges were related to his disability and the respondent’s failure to accommodate that disability. On this theory of the case, the last incident in the series of incidents occurred in August 2010, which was within one year of May 2011, when the Application was filed.
CONCLUSIONS
15On the basis of the information before me, I am satisfied that the Application relates to a series of events that relate generally to the issue of the applicant’s request for accommodation of his disabilities and how the respondent responded to those requests.
16On the basis of the Application alone, it appeared that the events involved only isolated incidents relating to a relatively short period of time after each of the toe surgeries and the period from approximately August 1, 2010, when he reported the arm injury to September 17, 2010, when he stopped work. However, on the basis of the further information and clarification provided during the conference call, it appears that there are allegations of an ongoing restriction concerning safety boots and an allegation that any issues relating to attendance problems was also linked to his disability.
17This does not mean that there were in fact ongoing issues regarding safety shoes or a failure on the part of the respondent to appropriately deal with these issues. It only means that there are allegations which if supported by evidence, could establish a series of Code-related incidents.
18On this basis, I am satisfied that it is not appropriate to dismiss the Application in whole or in part because the Application was not filed in time and in accordance with section 34(1) of the Code. Given this, it is not necessary to consider whether any delay in filing was incurred in good faith.
19I am also satisfied that the Application should not be dismissed at this time on the grounds that there is no reasonable prospect that the Application in whole or in part could succeed. The applicant has established that there are allegations that, if true, could plausibly amount to an infringement of the Code.
20However, since the allegations regarding the safety shoe issue were not clearly spelled out in the original Application, the applicant is directed to file an additional statement. This statement should set out in detail the full history as it relates to the applicant’s allegations regarding the accommodation process. This statement must be filed with the Tribunal and the respondent by June 8, 2012.
Dated at Toronto, this 18th day of May, 2012.
“Signed by”__________________________
Brian Cook
Vice-chair